Constitutional Law 1 Notes: BA LLB Hons

This page contains Constitutional Law 1 Notes of the 5 Year BALLB Hons. Course in law schools. They briefly talk about the history, philosophy, and objectives of constitutional law and the first three parts of the Indian Constitution with a special focus on citizenship and fundamental rights.

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CONSTITUTIONAL LAW NOTES: INTRODUCTION

What is a Constitution?

Set of norms that define structures, powers, and functions of organs and federation
Constitutes a state and its organs (Art. 12 India)
Generally a written Document
A Social Contract
Division of power between structures of Governance and their inter-relationship
Checks and balances on State Power/Limitation on state power
Defines the rights and duties of people and government
Entrenches itself through safeguards
Ensures Stability and continuity
Living document because Judiciary keeps interpreting its provision without any formal amendment

What is constitutional law?

Constitutional Law is the text of the constitution in Action.
It is an idea that the government should have defined and limited power, legitimacy, etc.
Contains the above features and defines what law shall come under the constitution.
Most liberal constitutions in the world adhere to constitutionalism. It is a philosophical construction.
Article 13(3) defines law as ordinances, rules, regulations, orders, notifications, customs having the force of law in the territory of India, etc.
The term of the ordinance is 6 months.
No ordinance can be extended technically. It can be re-promulgated.
Supreme Court is the guardian of the whole constitution.
Rulemaking power rests with the government.
Since the constitution is the foundation of administrative law, constitutional law contains all issues concerning it.
All constitutional law provision is subject to Judicial review.

What is constitutionalism?

An approach or theory of constitution-
1. that government should be legally limited in its power and
2. Its authority and legitimacy depend upon its adherence to those limits.
Adherence to the values of the constitution
Rule of Law is one of such values
Judicial Review can be another such value
Rule of Law-
1. Law made by Parliament is supreme
2. In India, the constitution is supreme
3. All are subject to ordinary law and same law-from people to the ruler
Article 142-Power of SC to do complete Justice
Article 144-contempt of court

What makes constitution different from other laws?

The constitution is the source from which all laws derive validity.
Any ordinary law that is not in compliance with the constitution is generally invalid as in India. Or it may be interpreted in such a way so as to make it in consonance with the constitution.
In UK SC can issue a declaration of incompatibility if laws made by Parliament are not in compliance with ECHR with the advice of reconsideration.
In Canada, any law that is incompatible with FR is invalid. But Parliament can resurrect that law by bringing notwithstanding clause.
Constitutions have inbuilt mechanisms for their enforcement.
They are meant to last for a long duration to ensure stability and continuity.
They seek to entrench themselves by making the procedure of their amendment more difficult than the procedure of amendment of ordinary laws.
The rationale behind this is that you also don’t want people with limited power to do away with those limits on the basis of short-sighted political decisions.
This entrenchment is sometimes ensured by Judicial Review.
Article 368 talks about amendment procedures.
1. Special majority requirement in parliament
2. Ratification by half the states
Other processes of amendments-
1. Presidential promulgation as in the case of 35A regarding J&K which was passed by the president in 1954 using Article 370D.
2. Articles 2, 3 and 4
3. Article 11 allows parliament to derogate from certain part of the constitution
4. Article 11 says-Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
Judicial review is not necessarily a part of constitutionalism.
1. Judicial review can be weak or strong.
2. In India, it is strong while in the UK it is weak.
Other checks can be through the electoral process, people, opposition, rebellion, etc.
HW- Describe Australia’s process of Judicial review.

Whether constitutions have to be necessarily written?

The UK has a written but uncodified constitution. In India, some constitutional and legislative conventions are not written in the constitution. Constitutional Conventions are practices that are regarded by the people as binding upon them. Article 75(1)-The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
Article 37-The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Which case?
Art 299
Election to provincial assembly took place in July 1946
Total number of seats=296
211(Congress) + 73(ML) = 284 + 12 vacant = 296
211 were won by Congress
73 won Muslim League
12 were not filled
2 years 11 months 17 days
1^st General Election took place in 1952
India 395 Articles even today
22 different parts
8 Schedules
Article 394-This article and articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January 1950, which day is referred to in this Constitution as the commencement of this Constitution.
Article 395-The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.
Article 35A is not in Constitution. It was promulgated by Rajendra Prasad
3 Blunders of Indian Constitution-
1. Lengthiest constitution
  1. US constitution has just 7 Articles.
2. We (people of India) have not read it.
  1. People have not read it.
3. They never practiced British Parliamentary in India, yet said that they were experienced in it.
  1. And today SC refers to British Parliamentary practice over the written provisions.
  2. Article 75(3)- UNR Rao v Indira Nehru Gandhi

AUSTIN ON THE CONSTITUENT ASSEMBLY

Congress made the official demand for constituent assembly in 1934 agreeing to separate electorate.

One party assembly in the hands of Congress.

Muslim league resisted the idea of freedom or constituent assembly for the fear of Hindu domination. (But same is true of Hindus in Punjab and Bengal-694 Rajmohan Gandhi)

Cabinet mission plan envisaged a federation with weak centre.

3 provinces-Hindu, Muslim and Mixed

Initially League and Congress accepted the Plan but the league rejected it later.

Congress formed the interim government after the 1946 elections.

At the 1^st session on 9 December 1946, League members were absent.

On 3 June 1947, Mountbatten announced the Partition plan through the Independence of India Act 1947.

Election to constituent assembly was based on a restricted and limited franchise established by the 6^th schedule of the 1935 Act which excluded the mass of peasants, the majority of small shopkeepers, and traders and countless others from the rolls, through tax, property and educational qualifications. Only 28.5% of adult population could vote in the provincial elections. (Page 10)

Primary qualification for a candidate to be congress candidate was is/her track record in the independence movement.

Congress high command brought Parsis, Anglo-Indians, Christians, SCs and STs under the General Category. (Page 12)

After partition percentage of minorities in CA was 37%.

Ambedkar was elected from Bengal with the support of Muslim League.

Rajendra Prasad presided when CA worked as CA while GV Mavalankar presided when CA worked as legislature.

Rajendra Prasad was president in 1948.

The CA had 8 major committees–

Rules of the procedure committee,

Steering committee,

Advisory committee,

Drafting committee,

Union Subjects,

Union Constitution,

Provincial Constitution and

The States committee

BN Rao was CA advisor. He had also helped in the drafting of the 1935 Act.

Oligarchies of the Constituent Assembly-

Pandit Nehru,

Rajendra Prasad

Sardar Patel

When members of the Oligarchy had split on any decision, the issue usually came to a vote in the party meeting.

SHEFALI JHA-LEGALITY OF THE CONSTITUENT ASSEMBLY

Was CA truly representative of the will of the people of India?
Were all sections of the society adequately represented in CA?
Congress had refused to allow Britishers to write the constitution of India.
Can the same argument be put up by Backward classes against upper caste dominated congress?
Advisory committee of CA was important as it dealt with the minority rights, tribal areas and excluded areas.

Was CA a collection of Hindu Upper Castes?

The first committee was the Rules of the Procedure of the Assembly Committee.
1. It had 15 members of which 10 were chosen by proportional representation.
In November 1948, Damodar Swarup Seth challenged the mandate of CA and asked for re-election based on Universal Adult franchise.
1. A constitution would only be democratic if the assembly framing it could be said to represent the will of different sections that made the people of India.
For India to be a democracy, it needed a transformative constitution.
1. Radhakrishanan said that we want to bring a fundamental altercation in the structure of Indian society.
2. Steer towards an egalitarian society.
3. Ambedkar said-Constitutional morality is not a natural sentiment, it has to be cultivated. Democracy in India is only a top dressing on an Indian soil which is essentially and grossly undemocratic.
He also said that that the soul of democracy is one man one value.
Another member said that democracy cannot be equated with majoritarianism.
That democracy is a government of deliberation which only takes place when there are opposing point of the view so democracy requires a vibrant opposition.
It was thought that through constitutional provisions democracy can be established in India.
Oppositional voices were sometimes sought to be silenced by threats that ultimately in a democracy decisions are made by the majority. Even Nehru subscribed to this view.
Rajendra Prasad said that the presence of central authority does not stop CA members from discussing the use of constitution to prevent India’s democracy from turning into a majoritarian state.
Presence of constitutional restraints in the name of anti-majoritarianism
Some tried to argue that constraining of a democratic government through constitution went against the spirit of democracy.
Some members held similar views regarding mention of Economic policy in the constitution that it will constrain the political will. Even Ambedkar held this view.
On 6 December 1948, many members disagreed on the replacement of due process of law clause with procedure established by law in Article 15.
1. KM Munshi pointed out that CA is more concerned to establish social control than to serve individual liberty.
2. This helped during the modification of the right to property clause later.
Democracy required that only those things be taken out of political domain which by being protected as a right actually strengthen the political domain.
1. But at the same time a strong political domain was needed to alter the structures of Indian society without the ills of majoritarianism.
Members demanded that if political will was to be left wide and strong then, representation of all sections especially the marginalised in the making of this will is necessary.
1. As a result members debated the remedy of rights versus remedy of ensuring the participation of different voices. But if rights set up enclaves where political will cannot enter even for social change, then it can be dangerous and troublesome if each group starts focussing on its own separate interest.
2. Many instead said that in order for the new Indian identity to develop, other identities such as gender, caste, religion be made less significant if not suppressed altogether.
3. Same view was propounded regarding reservations and positive affirmation.
CA saw the constitution as a democratic transformation which implied conception of a political will ranging widely over a public domain.

Part 2, 3, 4 of constitution.

The bulk will involve court judgements

US has a rigid constitution
India has both elements-amending provision affecting federal structure is a rigid process such as GST and NJAC.
Supremacy of Constitution is maintained by Judicial review.
Liberal constitution without a bill of Right-UK
Judiciary, opposition, people check and ensures constitutionalism.
Constitutionalism does not necessary involves having a bill of right.
Tom Ginsberg wrote about features of post war constitutions.
Constitutionalism involves limit on governmental power. Who is sovereign in this case?
Sovereign is one who has no limits on power. Who is sovereign in India? In India there is a constitutional supremacy.
1. In Keshavananda Bharti case, court held that, India does not have parliamentary supremacy.
2. Sovereignty then lies in people who authorises government to work on their behalf.
In passing objective resolution CA sourced its power to people of India and that it CA can only be dissolved by CA and not any other authority.
What is basic idea behind the social contract made by the people of India?
1. Consent of the governed is the rationale behind the idea of political power which makes democratic process important.
2. Today democracy is the touchstone of a political legitimacy.
Justification of CA was that people from all backgrounds were present there.
Regarding re-election on the basis of Universal Adult Franchise it said that they don’t have enough time for re-election.
Had there been 50% women in constituent labour-
1. Right to leisure
2. Right to work with dignity
3. Right to reproductive healthcare and autonomy
4. Economic recognition of housework
5. Schedule Federation of India made a series of demand in 1940s-
  1. Separate electorate
  2. Separate settlements and villages
Question 1-CA was in some way representative because it put forth the views of all sections of society.
1. There are something that cannot be proved by factual evidence unless they believe. For example – people are equal.
Question 2-Constitution making is also about technocracy that people who are drafting it should know about law, philosophy etc.
1. Granville Austin-constitution is not necessarily a technocratic exercise.
Whether it is representative today? By looking at Marmor’s piece
1. How much should it be entrenched
  1. Is basic structure legitimate
2. What should be scope of Judicial review?

ANDREI MARMOR: QUESTIONING VALIDITY OF CONSTITUTION

That constitutionalism does not deserve the celebrations that it has occasioned
Constitution is the basic structure of a legal system
How the robustness of constitution is measured?
1. Degree of rigidity
2. Power of court to interpret it.
3. Its power to prevail over democratic legislature.

Pre-commitment thesis

That rationale of a written constitution is to remove certain important moral and political decisions from the ordinary law-making business/ordinary democratic process to shield them from majority rule.
To limit the powers of Ordinary Democratic Process ODP.
Because ODP may be swayed by vagaries of the momentary short-sighted political temptations and pressures.
A constitution is therefore to ensure the long-term survival of some core principles.

MAIN FEATURES OF A MORALLY SIGNIFICANT CONSTITUTIONS

Normative Supremeacy–
1. They are superior to all other forms of legislations
Judicial Review-a branch of govt, which is less likely to swayed by vagaries of politics.
Longevity-
1. Intention to last for longer
Rigidity-
Two-pronged document-
1. Basic structure of government
  1. Legislative, executive and Judiciary
2. Arena of Human and civil rights
Generality and Abstraction-
1. Important constitutional provisions are formulated in a general and abstract terms
2. They are meant to be applied to all spheres of public life.
A constitution is robust if it is relatively rigid and allows for substantial power of judicial review.
The extent of power of judicial review is determined by the rigidity of the constitution.
US Constitution is robust because-
It is difficult to amend
Its supremacy over all other laws is absolute
SC has considerable power to determine or interpret its content
MORAL CONCERNS-
1. In order to understand the moral legitimacy of constitutions, we need to understand their basic moral-political rationale.
2. John Rawls said-
  1. Justice is the first virtue of Institutions as Truth is of system of thoughts.
3. Rawls suggest that an institution is legitimate if it is just.
4. An institution is legitimate if its main purpose or rationale is morally justified and its justification is not defeated by countervailing moral considerations.
5. In other words, to determine the legitimacy of an institution like a constitutional regime-
  1. We should first look into purpose and rationale.
  2. Then we should ask if that purpose or rationale is morally justified.

MAIN RATIONALE OF A WRITTEN CONSTITUTION

To shield certain principles of government and moral/political rights from ORDINARY DECISION MAKING PROCESS (ODP). Why is that?
1. Because we have reasons not to trust the Ordinary Democratic Process ODP.
2. Ulysses strategy. Similarly through constitution we are tying us to the mast.
3. This is also the reasoning behind the special role of courts in such cases
4. We want to protect some rights and principles from vagaries of the momentary short sighted political temptations and pressures.
5. Rebuttal–
  1. Assumption is that since courts are not democratic institutions they would be free from political temptations.
Inter-generational issue is certain to the question of legitimacy of constitutions-
1. Ulysses is not just tying himself to the mast but his future generations as well.
2. To impose constitutional constraints for the distant future appears problematic but it only purports to bind future generations to certain conceptions of good governance and just laws.
3. Also they possess flexibility of interpretation and amendments?
4. Rebuttals-
  1. They have limits. Flexibility of interpretation always takes place against the background of constitutional text and principles it embodies and also the binding of precedents.
  2. If a culture of constitutional interpretation is more flexible, it means courts have more power in its interpretation which is not democratic. This brings us to the worry of pluralism. We are taking from a majoritarian OCD but giving it to another non-democratic institution.
  3. In pluralistic societies, segments of population are deeply divided about matters of rights and moral principles and their conceptions of just and good.
  4. Constitutional entrenchment of values necessarily favours certain conceptions of just and good over others by essentially shielding them from democratic decision making process.
Pluralism–
1. In Ulysses myth, there is an assumption that sirens are deadly so to avoid them when they come.
2. Similarly, It seems plausible to reply that constitution can entrench those values that are conducive to pluralism and support to secure it.
  1. But under this powerful argument, there is an assumption that pluralism can only flourish in a democratic liberal regime.
3. The dispute about constitutionalism is an institutional one-that who gets to determine what those rights and principles are and according to what kind of procedure?
  1. Since there is are so much disagreements over this issue, there is no justification for removing them from the democratic process.
  2. Answer to this lies in the fact that constitutional entrenchment favours certain conception of values over others. It also favours a status quo And this is the baseline of a Regular Democratic Process RDP.
  3. Secondly we must keep in mind that debate about constitutionalism is basically a debate about institutions and procedures.
  4. But why democratic process be privileged at all?
    1. Because at least from the vantage point of the respect for value pluralism, a democratic process that is basically a majority vote is egalitarian BECAUSE IT ACCORDS EVERY INDIVIDUAL EQUAL RIGHT TO PARTICIPATE IN THE DECISION MAKING. This is the touchstone of morality for a political legitimacy.

ARGUMENTS IN JUSTIFICATION OF WRITTEN CONSTITUTION

THE ARGUMENT FROM STABILITY
1. This relies on two assumptions-
  1. Stability and predictability of a Legal system is important and desirable.
  2. Constitutions are essential for achieving stability across inter-generations.
2. Rebuttals–
  1. It would have limited application on matters of domain of rights, principles and moral issues which keeps changing from time to time.
  2. In such matters truth is valued more than stability.
  3. People ought to have rights that they ought to have not those that they have had for a long time.
  4. Even for a structure, we should have one that
  5. It relies on the assumption that constitutions guarantee a greater level of stability than non-constitutional regimes. But there is no empirical evidence to support this assumption.
THE ARGUMENT FROM PRACTICE
1. Many aspects of legal system is derived from social conventions. If such conventions are within the bounds of moral permissibility, then people have reasons to follow such conventions. Similarly constitutions are self-validating.
2. For example– Parliamentary or Presidential form of government convention. One can follow them as long as they are working fine.
3. Other example left and right side driving rule in different countries.
4. Rebuttals–
  1. Conventions are evolved to solve some social problem or need. So there has to be some value in practice of conventions or constitution beyond the fact that convention is there and just happens to be followed.
  2. For example– driving rules on one side of road was brought to solve coordination problem and prevent accident.
THE ARGUMENT FROM OPPORTUNITY
1. Assumes that constitutions entrench values that are widely held anyway. And in History of nations, a unique moment comes sometimes when these values should be entrenched.
2. It is done by men with unique expertise (Glorification of great personalities)
3. Same is true with religious figures.
4. Rebuttal–
  1. Either this entrenchment makes little difference or significant difference.
  2. If constitutional entrenchment makes little difference to widely cherished values, it makes no sense to have them entrenched as they are anyway widely held in the society.
  3. If it makes significant difference then its justification cannot merely reside on historicity of moment but rather why at all we have such rights entrenched?
  4. The question should be why at all we should have these values?
  5. Mystification of great moments in History that is unlikely to meet any critical scrutiny.
  6. It also ends up creating mystification around the text.
THE ARGUMENT FROM INHERENT LIMITS OF MAJORITY RULE
1. Protection of Minorities- Constitution is deliberately designed to be anti-majoritarian by removing certain issues from ordinary decision making ODP. (Then it assumes that ordinary decision making is always majoritarian)
2. Rebuttal–
  1. But robust constitutionalism in itself is a no guarantee for protection of minorities.
  2. Judges also have no particular incentive to go out of their way in protecting vulnerable minorities. Relying on the goodwill and moral wisdom of a few individual is certainly not a stable mechanism for protection of minorities.
  3. Structural constrains built into regular democratic process would seem to work much better. (In case of India by pondering on secularism)
    1. For example- Proportional Representation
3. For this majority should be convinced to give up some share for power-
  1. As a bonafide attempt to construct a fair system of governance.
  2. Those who are in majority today may themselves become minority tomorrow.
4. THE INSTRUMENTAL ARGUMENT–
5. This argument has a premise that there is nothing just in a democratic process.
6. That Democracy is justified only to the extent it leads to good governance and decision making.
7. If a non-democratic system works better, we can have that.
8. Constitutionalism is to prevent those situating from arising when democracy is not justified.
9. Rebuttal–
  1. It assumes that in the ordinary business of law making democracy is instrumentally justified.
  2. Reliability of democratic process is context dependent.
  3. Constitution helps in special cases such as National Emergency when ODP becomes unreliable.
  4. They assume that judiciary is more likely to reach better decision on certain matters than legislature. Maybe because courts works on the principles natural justice.
  5. Courts are under enormous political pressure.
    1. Judges are no expert in moral deliberations.
  6. And on important constitutional matters judges are as much divided as public.
THE INTRINSIC VALUE ARGUMENT
1. Premised on the intrinsic value of Democratic Process (DP) due to equal distribution of power.
2. Rebuttals–
  1. What should count as a political power that ought to be distributed equally.
  2. Constitutions do not alleviate the need to make authoritative decisions on matters of public controversy.
  3. They just shift it to a few such as Supreme Court.
  4. What principle of fairness could possibly justify the unique authority of courts to make those political decisions which are removed from ODP.
THE ARGUMENT FROM DEEP CONSENSUS
1. That constitution entrench matters of moral and political principles that reflect a deep level of consensus in the community and protect them from vagaries of momentary short-sighted political temptations.
2. The need for distinction between Moral Opinions MO and Deep Moral Commitments DMC is clear as in pluralistic societies people do not seem to agree on their moral judgements about the conceptions of good and just.
3. We might have surface level disagreement about DMCs, but at deep level there is unanimous agreement.
4. For eg. Equality, Value of Human life. Disagreement is over the kind of equality absolute or otherwise, death penalty.
  1. Rebuttals–
    1. Assumes that there is a consensus on deep moral commitments DMC
    2. That Judiciary is more likely to apply these DMCs than ODP as legislators who reflect self-perceived interests of their own constituencies and electorates.
5. Summary of this argument-
  1. Beneath the surface of disagreement in moral opinion, there is a deep level of consensus on fundamental moral values.
  2. Constitutional entrenchment of these deep values is needed to protect them from vagaries of momentary short-sighted political temptations.
  3. Compared to legislature, judiciary is better equipped to decide what these deep values are and apply them when need as such arise.
  4. The discovery and application of these values is a bottom-up case by case process and one which need not pre-suppose that we know all the truth about values in advance as it were. So every generation will get its own chance to define concretely what values are.
  5. Therefore Constitutionalism-
    1. Does not undermine respect for pluralism
    2. Does not involve the inter-generational binding mechanism that pre-commitment argument assumes.
6. Rebuttals–
  1. Concepts such as general will, deep values and consensus are myths akin to Rousseau’s myth of general will and Blackstone’s myth of wisdom of common law.
  2. Shared values or general deep values are just too general and abstract to settle particular moral and political controversies that tend to arise in constitutional cases.
  3. For example-debate on abortion where both parties agree that murder is wrong and should be prohibited but they disagree on whether abortion is a murder.
  4. This moral difference is equally deep and cannot be brushed aside with consensus.
  5. Second example-everyone world peace, but does that mean dismantling military even for humanitarian military intervention for securing peace.
  6. The argument of common consensus relies on another myth-the wisdom of common law.
  7. Just because legislators are ill-equipped does not entail that judges should work out the content of constitutional morality. They say that compared to legislature, judiciary is better equipped to decide what these deep values are and apply them when need as such arise as it take into account principles of Natural Justice. It is also deliberative.
  8. Some say it is because courts develop the law on a case by case basis. But then it renders constitutional text much less important than assumed.
  9. Problems with the common law-
    1. It is typically Insular– does not necessarily allow the courts to see the entire social and moral problem. Besides, there are various problems such as of locus-standi etc
    2. Self-perpetuating-based on a binding force of precedents. It is equally bound to expand the effects of errors. Judgement on Privacy etc. Path dependent
    3. Lacks adequate feed back mechanism. Legislatures on the other hand have much more developed feed-back mechanism FBM.
    4. Judges have their own biases on moral deliberations. Since constitutional decisions tend to be long-lasting, erroneous constitutional decisions ECDs have same effect as amendments are relatively difficult to make.
    5. Judges come from elite background. We are just relying on the goodwill of judiciary.
7. The image of the History is in the eyes of the beholder.

CONCLUSION

If the very legitimacy of a robust constitution is in doubt, judges should exercise considerable restraint in constitutional interpretation.
Constitutional issues are mostly moral issues. And a sound constitutional decision has to be morally sound.
In constitutional cases, judges have the power to make a significant moral difference.
If there is a serious concern about the legitimacy of robust constitutionalism, we should aspire to make constitutional regimes less robust.
1. For example, the notwithstanding clause of article 33 of the Canadian charter seems to be a particularly attractive way of softening the robustness of constitutions. Its’s advantages-
  1. Mitigates the inter-generational concerns
  2. As long as the final say in constitutional matters rests with the democratically elected legislatures, the binding effect of the constitution is substantially reduced.
  3. It also mitigates our concerns about pluralism. To what extent is very difficult to answer.

Marmor’s two meta concern-

Inter-generational problem–

The similarity between religious text and constitution in terms of bindingness and glory etc.

But Indian constitution is amendable. But the problem is the basic structure.

Problem of Pluralism–

ADITYA NIGAM: POLITICS IN THE INDIAN CONSTITUTION

Discussion by Prof. Khetan
Liberal provisions in the constitution of India were not motivated by the liberal impulse but multiple forces in deep disagreement forced them to accept liberal institutions as a strategic choice.
It was aimed at breaking the Dalit-Muslim alliance.
Constitution making is messy political self-exercise and its more so than ordinary politics.
The ‘Endurance of national constitution’-Ginsberg
What makes constitution making different from ordinary politics?
1. Accommodation of opposition voices
2. Entrenchment
3. Flexibility
Radical constitutional change is harmful.
Empirical researches show that stable constitutions work better.
Transaction cost in during constitution making is extremely High.
One of the less accommodating feature of Indian constitution is the expressive accommodation.
1. Various political models are there for accommodating minorities
2. DPSP was used to accommodate the different kind of minority-ideological, Gandhinian, radicals, communal etc who were sure of their coming to power.
Incrementalism is the idea preferring a political choice which is better than the available one.
Page 211 of Nigam-even a cursory reading of CAD will reveal there was no polyvocality as such.
Ben Schonthal-Book on Buddhist accommodation in Sri-Lanka
Hypocrisy is a political virtue?
Incrementalism is the opposite of the moral purity.
Pratap Bhanu Mehta article Indian Express

ADITYA NIGAM ARGUMENTS

Constitutions are rarely about change; they are codes that legitimise the new dispensation that arises out of historical conflicts and struggles.
It may be useful to begin by underlining the three great absences that haunted the constituent assembly, as it began its first session amidst tremendous uncertainty:
1. The Muslim League,
2. The representatives of the so-called Indian states and
3. The Father of the Nation Mahatma Gandhi
For Ambedkar was elected to the assembly with the support of the Muslim League, as a member from the Bengal legislative assembly, which had an ML ministry in office in these fateful years.
The Poona Pact arrived at, at the end of his fast, took away forever the possibility of separate electorates from the Dalits and thus laid the foundations of the ‘Liberal Constitution’.
A joint electorate would thenceforth become an Article of faith for the writers and commentators of the Indian Constitution.
As a matter of fact, when Lord Wavell called the Simla conference in June-July 1946, this was the basis of his discussions. Scheduled caste leaders were not invited to the conference; nor were they granted separate representation. And none but Gandhi could have accomplished this feat, for no one had the moral stature to do so.
Meanwhile, Nehru’s will to power was playing itself out to the fullest. Two days after his election as Congress president, on July 10, he made the fateful statement to the press that “the Congress had made no commitment to the Cabinet Mission or the viceroy concerning the constituent assembly”. While the overt thrust of this statement was directed at British power, Nehru was clearly targeting the ML and Jinnah, whom he was now forcing to choose under the ‘compulsion of events’.
Nine days later, Ambedkar was elected to the constituent assembly as an independent candidate supported by the ML, from Bengal. An alliance between the ML and the SCF was being forged. The threat of a Hindu upper caste rule being instituted in the name of swaraj was now as real as ever – at least to the two biggest minorities. From late August onwards, this alliance took the shape of ML leaders addressing SCF protest meetings against the Cabinet Mission decision to deprive them of separate representation. On July 29, the ML Council unanimously voted to empower Jinnah to “resort to direct action to achieve Pakistan”.
BUT FOR THE CONGRESS AND THE NATIONALISTS THE PROBLEM WAS THE ML-SCF ALLIANCE If the Muslim League and the Muslims were to be singled out as the anti-national forces that were bent upon partition, then this alliance had to be broken. More than anything else, it was a question of the legitimacy of nationalism’s claims to represent the nation that were at the root of their discomfort. It is therefore, around this time that leaders like Sardar Patel proposed to “negotiate with Ambedkar out of fear of the League” (these words are Gandhi’s). Patel had in fact, been requesting Gandhi to meet Ambedkar in order to negotiate with him.
BUT FOR THE LIKES OF PATEL, IT WAS CRUCIAL THAT THE SCF ALLIANCE WITH THE ML BE BROKEN To do that he was prepared to give Ambedkar a place of honour in the new dispensation. In the event, he would even forsake Gandhi, his teacher and leader. He would do this, and Nehru would later, in April 1948, appoint Ambedkar his law minister, not for the sake of the untouchables, but in keeping with the logic of power. In between, as events rapidly played themselves out, Ambedkar lost his seat in the CA due to partition, and the Congress made the important gesture of nominating him as Congress candidate from the Bombay legislative council. While the Congress was under some compulsions in making these overtures to Ambedkar, the latter too had to choose his moves in a rapidly changing and uncertain situation. There were clearly pressures on him too. Once it became clear that the partition was now inevitable, he had to choose to make the best of a bad deal. Ambedkar’s statement given in the epigraph to this essay should be read in that light.
In fact, I would argue that the whole history of the anti-colonial struggle can be read as an intricate process of the writing of the Constitution.
1. The various landmarks of the freedom struggle, starting with struggle against the initiatives of the colonial government, like the Morley-Minto reforms, the Montague-Chelmsford report and the Government of India Act 1919, to the proceedings of the Simon Commission and the Round Table Conferences are episodes in the writing of the text that emerged, with significant embellishments of course, from the constituent assembly. It has been widely acknowledged, even in the CA debates, that the final draft of the Constitution, owed not a little to the Government of India Act of 1935.
Granville Austin, one of the most serious scholars of the Indian Constitution also concurs when he argues that “the belief in parliamentary government seemed in fact to be nearly universal”.
1. In support of this contention, Austin says that the draft constitutions published by groups of the left, centre and the right – those of the Marxist M N Roy, of the Socialist Party and of the communal Hindu Mahasabha – were also all parliamentary, centralised constitutions.
A question that one might then legitimately ask here is whether this means that the leaders of the Indian republic were being dishonest? Was there no ethical ground on which they based their positions? Did they act merely out of considerations of the logic of power?
1. When mainstream nationalism advocates a strong centralised state along with an insistence on the value of individual citizenship, it does so out of a vision of a particular kind of modern nation state where, eventually, individual citizenship will be the sole relevant criterion regulating the state’ s dealings with its people.
2. It possibly genuinely believes that markers of community need to be erased for a truly democratic future to be realised.
3. On the other hand, when representatives of the Muslim minority strike a different posture, they do so out of the belief that, being discriminated against as a community, all its problems cannot be articulated in the language of individual rights – as the exchange between Lari and Pant so graphically illustrates – and given that they have lost the possibility of separate political representation, they will need separate safeguards.
4. The best that is possible in that case, is a federal structure where all powers are not concentrated in one centre.
5. It is also interesting that Ambedkar, who generally shared the nationalist position on the need for a strong, centralised state, did so for entirely different reasons.
6. To him such a state was necessary in order to be able to ensure compliance of society with regard to the rights of Dalits.
My submission here will be that even a cursory reading of the CA debates suggests that there was no such thing as “a particular set of values” that was given preference over others, precisely because their was no single authorial voice there as assumed in the expression “the framers of the constitution chose…”. There is in the statement an assumption of a singular will which “chose” one, rather than another, set of values and with a kind of coherent justificatory framework.
My general problem with this way of posing the problem of the political theory of the Indian Constitution can thus be stated in the following manner:
1. First, the assumption of a “single will” underlying the Constitution, can be understood in either of the two ways.
  1. One way would be to posit a prior community of interests upon which a ‘general will’ as it were, arises. This is a problematic assumption to make as we have seen, given that there were such vastly different interests at play here.
  2. Another way of understanding it is to argue, for instance that even though there were fundamental differences of opinion between different players, they were all basically reasonable people operating within a generally Habermasian terrain of rational-critical discourse, coming up in the end, with a consensual ‘single will’. This means that their disagreements were fundamentally intellectual in nature and, as such, they were prepared to convince and be convinced by the others.
2. It might be more realistic and productive to see the constituent assembly itself as the site where different currents and diverse groups come together, under the compulsion of the logic of power, to hammer out a negotiated settlement– a settlement that aspires to nationhood no doubt, but which remains nevertheless, an articulated totality whose very being is always threatened by the very fragility of the settlement. In other words, I am suggesting that we see ‘Indian society’ not as a given pre-existing totality, that is evolving according to some evolutionary logic, into a nation, but rather as different entities, having different histories, come together into an articulated whole. The terrain on which these different histories, therefore different temporalities of the everyday, come together is the accelerated temporality of the Indian state. It is here that, in the harmonisation of different temporalities, through what Althusser describes as torsion, displacement and fusion of different times, emerges the nation state.
My reading of the constituent assembly as event and the Indian Constitution as an outcome of negotiations that brought forth the ‘Indian nation’ seems to affirm this relationship – the CA being the intellectual core of the emerging state.

JEREMY WALDRON: AGAINST JUDICIAL REVIEW

THE CORE OF THE CASE AGAINST JUDICIAL REVIEW

The Essay criticizes Judicial Review JR on two main grounds.
1. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures.
2. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so.
As Ronald Dworkin puts it—and he is a defender of judicial review—on “intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries,” the people and their representatives simply have to “accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special.”
In recent years, a number of books have appeared attacking judicial review in America. But there have been spirited defences of the practice as well. The two-hundredth anniversary of Marbury v. Madison elicited numerous discussions of its origins and original legitimacy, and the fiftieth anniversary of Brown v. Board of Education provided a timely reminder of the service that the nation’s courts performed in the mid-twentieth century by spearheading the attack on segregation and other racist laws.
Judicial review is vulnerable to attack on two fronts.
1. It does not, as is often claimed, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedent, texts, and interpretation.
2. And it is politically illegitimate, so far as democratic values are concerned: By privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.
Judicial review is just the subjection of the legislature to the rule of law. But in the case of the legislature, it is not uncontested; indeed that is precisely the contestation we are concerned with here.
In a system of Strong Judicial Review SJR, courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights (in ways that the statute itself does not envisage).
1. Moreover, courts in this system have the authority to establish as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis and issue preclusion a law that they have refused to apply becomes in effect a dead letter.
2. A form of even stronger judicial review would empower the courts to actually strike a piece of legislation out of the statute-book altogether.
In a system of Weak Judicial ReviewWJR, by contrast, courts may scrutinise legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated.
1. Nevertheless, the scrutiny may have some effect. In the United Kingdom, the courts may review a statute with a view to issuing a “declaration of incompatibility” in the event that “the court is satisfied that the provision is incompatible with a Convention right”—i.e., with one of the rights set out in the European Convention of Human Rights as incorporated into British law through the Human Rights Act.
2. Like their British counterparts, the New Zealand courts may not decline to apply legislation when it violates human rights (in New Zealand, the rights set out in the Bill of Rights Act of 1990); but they may strain to find interpretations that avoid the violation.
3. In Canada, there is a provision for the review of legislation by courts, and courts there, like their U.S. counterparts, may decline to apply a national or provincial statute if it violates the provisions of the Canadian Charter of Rights and Freedoms. But Canadian legislation (provincial or national) may be couched in a form that insulates it from this scrutiny—Canadian assemblies may legislate “notwithstanding” the rights in the Charter. In practice, however, the notwithstanding clause is rarely invoked.
In recent years, for example, the Supreme Court of the United States has struck down a number of statutes because they conflict with the Supreme Court’s vision of federalism.
A fourth distinction is connected with the third. Judicial review can be carried out by ordinary courts (as in the Massachusetts case we began with) or it can be carried out by a specialized constitutional court.
FOUR ASSUMPTIONS to imagine a society with-
1. Democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult suffrage;
2. A set of judicial institutions, again in reasonably good order, set up on a non-representative basis to hear individual lawsuits, settle disputes, and uphold the rule of law;
3. A commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights; and
4. Persisting, substantial, and good faith disagreement about rights (i.e., about what the commitment to rights actually amounts to and what its implications are) among the members of the society who are committed to the idea of rights.

Assumption I-Democratic Society

This society has a broadly democratic political system with universal adult suffrage, and it has a representative legislature, to which elections are held on a fair and regular basis.
They may not be perfect and there are probably ongoing debates as to how they might be improved. I assume these debates are informed by a culture of democracy, valuing responsible deliberation and political equality.
All that I have said about the legislative and electoral arrangements being in good working order goes to process values rather than outcome values.

Assumption II-Judicial Institutions

I assume that the society we are considering has courts—that is, a well- established and politically independent judiciary, again in reasonably good working order, set up to hear lawsuits, settle disputes, and uphold the rule of law. I assume that these institutions are already authorized to engage in judicial review of executive actions, testing it against statutory and constitutional law.
By this I mean not only that judicial office is not (for the most part) an elective office, but also that the judiciary is not permeated with an ethos of elections, representation, and electoral accountability in the way that the legislature is. Many defenders of judicial review regard this as a huge advantage, because it means courts can deliberate on issues of principle undistracted by popular pressures and invulnerable to public anger.
I will assume that we are dealing with courts that-
1. Do not act on their own motion or by abstract reference, but rather respond to particular claims brought by particular litigants;
2. Deal with issues in the context of binary, adversarial presentation; and
3. Refer to and elaborate their own past decisions on matters that seem relevant to the case at hand.
I further assume a familiar hierarchy of courts, with provisions for appeal, and with larger multimember bodies (perhaps five or nine judges) addressing cases at the highest level of appeal, with lower courts being required largely to follow the lead of higher courts in the disposition of the matters that come before them.
Second, although judges are likely to be at least as committed to rights as anyone else in the society, I assume that like other members of the society, judges disagree with one another about the meaning and implications of individual and minority rights.

Assumption III-A Commitment to Rights

I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. Although they believe in the pursuit of the general good under some broad utilitarian conception, and although they believe in majority rule as a rough general principle for politics, they accept that individuals have certain interests and are entitled to certain liberties that should not be denied simply because it would be more convenient for most people to deny them.
I assume that this society-wide commitment to rights involves an awareness of the worldwide consensus on human rights and of the history of thinking about rights.
I assume that the commitment to rights is not just lip service and that the members of the society take rights seriously: They care about them, they keep their own and others’ views on rights under constant consideration and lively debate, and they are alert to issues of rights in regard to all the social decisions that are canvassed or discussed in their midst.
To make this third assumption more concrete, we may assume also that the society cherishes rights to an extent that has led to the adoption of an official written bill or declaration of rights of the familiar kind. I shall refer to this throughout as the “Bill of Rights” of the society concerned. This is supposed to correspond to, for example, the rights provisions of the U.S. Constitution and its amendments, the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights (as incorporated, say, into British law in the Human Rights Act), or the New Zealand Bill of Rights Act.
Readers may be aware that I have argued in the past that judicial review should not be understood as a confrontation between defenders of rights and opponents of rights but as a confrontation between one view of rights and another view of rights.

Assumption IV-Disagreement about Rights

I assume that there is substantial dissensus as to what rights there are and what they amount to.
They define major choices that any modern society must face, choices that are reasonably well understood in the context of existing moral and political debates, choices that are focal points of moral and political disagreement in many societies.
Examples spring quickly to mind: abortion, affirmative action, the legitimacy of government redistribution or interference in the marketplace, the rights of criminal suspects, the precise meaning of religious toleration, minority cultural rights, the regulation of speech and spending in electoral campaigns, and so on.
A commitment to rights can be wholehearted and sincere even while watershed cases remain controversial.
For example, two people who disagree about whether restrictions on racist hate speech are acceptable may both accept that the right to free speech is key to thinking through the issue and they may both accept also that the case they disagree about is a central rather than marginal issue relative to that right.
Generally speaking, the fact that people disagree about rights does not mean that there must be one party to the disagreement who does not take rights seriously.
If judicial review is set up in the society, then lawyers will argue about these issues using both the text and the gravitational force of the text of the Bill of Rights. In fact, lawyers will have a field day. Each side to each of the disagreements will claim that its position can be read into the bland commitments of the Bill of Rights if only those texts are read generously (or narrowly) enough.

THE FORM OF THE ARGUMENT
1. The members of the community are committed to rights, but they disagree about rights.
2. An argument, which I respect, for some sort of power of judicial review goes as follows:
  1. It may not always be easy for legislators to see what issues of rights are embedded in a legislative proposal brought before them; it may not always be easy for them to envisage what issues of rights might arise from its subsequent application. So it is useful to have a mechanism that allows citizens to bring these issues to everyone’s attention as they arise.
  2. But this is an argument for weak judicial review only, not for a strong form of the practice in which the abstract question of right that has been identified is settled in the way that a court deems appropriate. It is an argument for something like the system in the United Kingdom, in which a court may issue a declaration that there is an important question of rights at stake.
3. The question we face is whether that resolution of the legislature should be dispositive or whether there is reason to have it second-guessed and perhaps overruled by the judiciary.
4. I have heard people say that the decision-rule should be this: The legislature’s decision stands, except when it violates rights. But clearly this will not do. We are assuming that the members of the society disagree about whether a given legislative proposal violates rights. We need a way of resolving that disagreement.
5. No decision-procedure will be perfect. Whether it is a process of unreviewable legislation or whether it is a process of judicial review, it will sometimes come to the wrong decision, betraying rights rather than upholding them.
6. Richard Wollheim called this “a paradox in the theory of democracy,” because it allows one and the same citizen to assert that A ought not to be enacted, where A is the policy he voted against, and A ought to be enacted, because A is the policy chosen by the majority.
7. Two sorts of reasons may be considered. I shall call them-
  1. OUTCOME-RELATED REASONS ORR and (What will lead to better outcomes)
  2. PROCESS-RELATED REASONS PRR, (Squarely Which process is best)
8. Though they are both relevant to the issue of decision-procedure.
9. Process-related reasons are reasons for insisting that some person make, or participate in making, a given decision that stand independently of considerations about the appropriate outcome.
  1. In personal life, we sometimes say that a parent has the right to make the decision as to whether her child should be disciplined for a given infraction:
  2. It is not for a passer-by on the street or another passenger on the bus to make that decision.
10. Outcome-related reasons, by contrast, are reasons for designing the decision-procedure in a way that will ensure the appropriate outcome (i.e., a good, just, or right decision).
  1. Our subject matter is disagreements about rights. Because rights are important, it is likewise important that we get them right and so we must take outcome-related reasons very seriously indeed. Wrong answers may be tolerable in matters of policy; but on matters of principle, if the wrong answer is given, then rights will be violated.
  2. It is possible, however, to garner outcome-related reasons on a more modest basis.
  3. Instead of saying (in a question-begging way) that we should choose those political procedures that are most likely to yield a particular controversial set of rights, we might say instead that we should choose political procedures that are most likely to get at the truth about rights, whatever that truth turns out to be.
11. But there are also all sorts of important reasons that are not outcome-related that we should not hesitate to apply to the choices we make about the design of procedures for the resolution of disagreements about rights. I have given a few examples already, but here is another one: the principle of self-determination. There is a reason for having these disagreements be settled for each society within its own political system, rather than by diktat from outside (e.g., by a neighbouring government or a former colonial power). Some think this is not a conclusive reason. They say that national self-determination and sovereignty should sometimes give way to international authority on questions of human rights.
12. The term “outcome-related” sounds consequentialist.
  1. But because the consequences we are trying to avoid are rights-violations, their avoidance has some of the deontological urgency associated with rights.
13. Process-related reasons are often matters of deontological urgency also.
  1. Ronald Dworkin, I think, misstates the character of participatory reasons when he refers to them as “[t]he participatory consequences of a political process.”
  2. He suggests that allowing individual citizens the opportunity to play a part in the community’s political decision making has a consequence—a good consequence—which is that it confirms their equal membership or standing in the community.
14. Allowing people to participate also has the good consequence of helping citizens to identify with the results of political decisions and to view those decisions as in some sense theirs, with good knock- on effects for legitimacy (in the sociologist’s sense of that word). All this is no doubt important. But it has the flavor of a headmaster noting the advantages that may accrue from giving his pupils a say in educational affairs through a school council.
15. We could ask:
  1. “What method/process is most likely to get at the truth about rights, while at the same time adequately respecting the equal claim to be heard of the voices of those affected?” Or we could ask:
  2. “What method best respects the equal claim to be heard of the voices of those affected, while at the same time being reasonably likely to get at the truth about rights?”
16. The process-related reasons PRR, however, are quite one-sided.
  1. They operate mainly to discredit judicial review while leaving legislative decision making unscathed.
  2. Thus, it seems to me the legislative side wins on either formulation of the question. And that will be the core of the case against judicial review.
OUTCOME RELATED REASONS-
1. It is tempting to associate outcome-related reasons with the case for judicial review (and process-related reasons with the case against it). This is a mistake. It is true that many of the more important process-related reasons are participatory and therefore favor elective or representative institutions.
2. It is sometimes suggested that structures of democratic participation take no cognizance at all of the independent importance of securing appropriate outcomes—they just blindly empower the majority. This is nonsense. All democracies limit the franchise in various ways in order to secure a modicum of mature judgment at the polls. And decisions are usually made in the context of bicameral institutions, so that each legislative proposal has to secure majority support in each of two houses on slightly different elective schedules.
3. I want to consider in more detail three outcome-related advantages that are sometimes claimed for courts–
  1. (a) that issues of rights are presented to courts in the context of specific cases;
  2. (b) that courts’ approach to issues of rights is oriented to the text of a Bill of Rights; and
  3. (c) that reasoning and reason-giving play a prominent role in judicial deliberation.
4. A. Orientation to Particular Cases-
  1. People sometimes argue that the wonderful thing about judicial reasoning on rights (as opposed to legislative reasoning on rights) is that issues of rights present themselves to judges in the form of flesh-and-blood individual situations.
  2. Rebuttals–
    1. By the time cases reach the high appellate levels we are mostly talking about in our disputes about judicial review, almost all trace of the original flesh-and-blood right-holders has vanished, and argument such as it is revolves around the abstract issue of the right in dispute.
    2. Plaintiffs or petitioners are selected by advocacy groups precisely in order to embody the abstract characteristics that the groups want to emphasize as part of a general public policy argument.
5. B. Orientation to the Text of a Bill of Rights
  1. The Bill of Rights, we have assumed, has been adopted in the society pursuant to members’ shared commitment to the idea of individual and minority rights notwithstanding the fact that they disagree about what these rights are and what they entail.
  2. Rebuttal-
    1. The written formulations of a Bill of Rights BOR also tend to encourage a certain rigid textual formalism. A legal right that finds protection in a Bill of Rights finds it under the auspices of some canonical form of words in which the provisions of the Bill are enunciated.
    2. The text of a Bill of Rights may distort judicial reasoning not only by what it includes but also by what it omits.
    3. Suppose the members of a given society disagree about whether the Bill of Rights should have included positive (socioeconomic) as well as negative (liberty) rights.
    4. A failure to include positive rights may alter (or distort) judges’ understanding of the rights that are included.
    5. Judges may give more weight to property rights or to freedom of contract, say, than they would if property and freedom of contract were posited alongside explicit welfare rights.
    6. And giving them greater weight may lead judges to strike down statutes that ought not to be struck down—statutes that are trying to make up the deficiency and implement by legislation those rights that failed to register in the formulations of the Bill of Rights.
6. C. Stating Reasons
  1. But Legislators also give reasons for their votes just as judges do.
    1. The reasons are given in what we call debate and they are published in Hansard or the Congressional Record.
  2. Courts’ reason-giving also involves attempts to construct desperate analogies or disanalogies between the present decision they face and other decisions that happen to have come before them (and in which they were engaged in similar contortions). There is laborious discussion of precedent, even though it is acknowledged at the highest levels of adjudication that precedent does not settle the matter.
  3. And all the time, the real issues at stake in the good faith disagreement about rights get pushed to the margins. They usually take up only a paragraph or two of the twenty pages or more devoted to an opinion, and even then the issues are seldom addressed directly.
  4. In this regard, it is striking how rich the reasoning is in legislative debates on important issues of rights in countries without judicial review.
  5. But the key difference between the British legislative debate and the American judicial reasoning is that the latter is mostly concerned with interpretation and doctrine, while in the former decision makers are able to focus steadfastly on the issue of abortion itself and what it entails—on the ethical status of the fetus, on the predicament of pregnant women and the importance of their choices, their freedom, and their privacy, on the moral conflicts and difficulties that all this involves, and on the pragmatic issues about the role that law should play in regard to private moral questions.
7. It is certainly the case that just as courts address questions of rights in ways that distort what is really at stake, so too can legislative reasoning be a disgrace, as legislative majorities act out of panic, recklessly, or simply parrot popular or sectarian slogans in their pseudo-debates.
8. Despite Dworkin’s rhetoric about “Forums of Principles” I think courts are expected to behave in the ways that I have criticized, focusing on precedent, text, doctrine, and other legalisms.
9. Our assumption about courts—assumption two—is about institutions that behave in that way, indeed behave well by those (legalistic) standards. In the case of legislatures, however, hasty or sectarian legislating is not part of the normal theory of what legislatures are set up to do. It is not what we should assume for the core case of legislative decision making in a society most of whose members respect rights.
PROCESS-RELATED REASONS
1. The theory of a process-based response is the Theory of Political Legitimacy.
2. Suppose a citizen who disagrees with a legislative decision about rights poses the two questions I have envisaged.
3. SHE ASKS ABOUT LEGISLATURE:
  1. Why should this bunch of roughly five hundred men and women (the members of the legislature) be privileged to decide a question of rights affecting me and a quarter billion others?; and
  2. Even if I accept the privileging of this five hundred, why wasn’t greater weight given to the views of those legislators who agreed with me?
4. The answer to the first question is provided by the theory of fair elections to the legislature, elections in which people like Cn were treated equally along with all their fellow citizens in determining who should be privileged to be among the small number participating in decisions of this kind. The answer to the second question is given by the well-known fairness arguments underlying the principle of Majority Decision (Md).
5. So now we imagine—or, in a system like the United States, we observe— decisions being made not by a legislature but by a court (let’s make it the U.S. Supreme Court) on a vexed issue of rights on which the citizens disagree. And a citizen—again we’ll call her Cn—who disagrees with the substance of one of the court’s decisions complains about it.
6. SHE ASKS ABOUT JUDICIARY:
  1. Why should these nine men and women determine the matter?; and
  2. Even if they do, why should they make their decision using the procedure that they use rather than a procedure that gives more weight to Justices with a view that Cn favors?
7. First, why should these Justices and these Justices alone decide the matter?
  1. One answer might be that the Justices have been appointed and approved by decision makers and decision making bodies (the President and the Senate) who have certain elective credentials.
  2. But the problem is-Legislators are regularly accountable to their constituents and they behave as though their electoral credentials were important in relation to the overall ethos of their participation in political decision making. None of this is true of Justices.
  3. Second, even if we concede that vexed issues of rights should be decided by these nine men and women, why should they be decided by simple majority voting among the Justices?
8. I suspect that if the use of MD by courts were to be defended, it would be defended either as a simple technical device of decision with no further theoretical ramifications, or on the basis of Condorcet’s Jury Theorem (majority voting by a group of adjudicators arithmetically enhances the competence of the group beyond the average competence of its members).
  1. If it is the latter, then the defense of MD is part of the OUTCOME-RELATED CASE for judicial competence, which means that it will have to compete with a similar case that can be made for the much larger voting bodies in legislatures. However this argument would play out, my point is this: There is no additional fairness argument for the use of MD by courts, as there is for its use by legislatures.
9. On the process side, institutions giving final authority on these matters to judges fail to offer any sort of adequate response to the fairness-complaint of the ordinary citizen based on the principle—not just the value—of political equality.
10. That failure might be tolerable if there were a convincing outcome-based case for judicial decision making.
11. Defenders of judicial review have tried a number of last-ditch attempts to reconcile their favored institution to democratic values.
  1. First, defenders of judicial review claim that judges do not make their own decisions about rights; they simply enforce decisions of the people that are embodied in a Bill of Rights, which itself has democratic credentials, either as legislation or as part of a constitution.
    1. Rebuttal–
    2. This claim does not undermine the core case against judicial review.
    3. We are assuming that the Bill of Rights does not settle the disagreements that exist in the society about individual and minority rights.
    4. It bears on them but it does not settle them. At most, the abstract terms of the Bill of Rights are popularly selected sites for disputes about these issues.
    5. The question we have been considering is who is to settle the issues that are fought out on those sites.
  2. Second, and in much the same spirit, defenders of judicial review claim that judges are simply enforcing the society’s own pre-commitment to rights. That society has bound itself to the mast on certain principles of right, and, like Ulysses’ shipmates, the judges are just making sure the ropes remain tied.
    1. Rebuttal–
    2. The response is that the society has not committed itself to any particular view of what a given right entails, so when citizens disagree about this, it is not clear why giving judges the power to decide should be understood as upholding a pre-commitment.
    3. If someone insists nevertheless that society has committed itself to a particular view about the right in question (and the judges, by voting among themselves, somehow ascertain that pre-commitment), once an alternative understanding of the right is in play, it is not clear why the existing precommitment should hold.
    4. The Ulysses model works only when the precommitment guards against various aberrations, not when it guards against changes of mind in relation to genuine disagreement as to what a reasonable outcome would be.
  3. Third, defenders of judicial review claim that if legislators disagree with a judicial decision about rights, they can campaign to amend the Bill of Rights to explicitly override it.
    1. Rebuttal–
    2. Their failure to do this amounts to a tacit democratic endorsement.
    3. This argument is flawed because it does not defend the baseline that judicial decision making establishes.
  4. Fourth, defenders of judicial review insist that judges do have democratic credentials: (not in India)They are nominated and confirmed by elected officials, and the kind of judicial nominations that a candidate for political office is likely to make nowadays plays an important role in the candidate’s electoral campaign.
    1. Rebuttal–
    2. This is true; but (as I have already remarked) the issue is comparative, and these credentials are not remotely competitive with the democratic credentials of elected legislators.
    3. Moreover, to the extent that we accept judges because of their democratic credentials, we undermine the affirmative case that is made in favor of judicial review as a distinctively valuable form of political decision making.
  5. Fifth and finally, defenders of judicial review claim that the practice may be justified as an additional mode of access for citizen input into the political system. Sometimes citizens access the system as voters, sometimes as lobbyists, sometimes as litigants. They say we should evaluate the legitimacy of the whole package of various modes of citizen access, not just the democratic credentials of this particular component.
    1. Rebuttal–
    2. But embedding judicial review in a wider array of modes of citizen participation does not alter the fact that this is a mode of citizen involvement that is undisciplined by the principles of political equality usually thought crucial to democracy.
    3. People tend to look to judicial review when they want greater weight for their opinions than electoral politics would give them.
THE TYRANNY OF MAJORITY
1. I believe that this common argument is seriously confused. Let us grant, for now, that tyranny is what happens to someone when their rights are denied.
2. Indeed, in some cases, there will be allegations of tyranny on both sides of a rights issue.
  1. Defenders of abortion rights think the pro-life position would be tyrannical to women; but the pro-life people think the pro-choice position is tyrannical to another class of persons (foetuses are persons, on their account).
  2. Some think that affirmative action is tyrannical; others think the failure to implement affirmative action programs is tyrannical. And so on.
3. Democratic institutions will sometimes reach and enforce incorrect decisions about rights.
4. This means they will sometimes act tyrannically.
5. But the same is true of any decision process. Courts will sometimes act tyrannically as well. Tyranny, on the definition we are using, is more or less inevitable. It is just a matter of how much tyranny there is likely to be.
6. Is tyranny by a popular majority (e.g., a majority of elected representatives, each supported by a majority of his constituents) a particularly egregious form of tyranny? I do not see how it could be.
7. The most commonly expressed misgiving about unrestrained legislative authority is that minorities or individuals may suffer oppression in relation to the majority. They may be oppressed, or discriminated against, or their rights denied and violated compared to those of the majority, or their interests unduly subordinated to those of members of the majority.
8. When it does, however, we need to distinguish at least in the first instance between the “Decisional” Majority And Minority and what I shall call the “Topical/Statistical” Majority And Minority-ie, the majority and minority groups whose rights are at stake in the decision.
9. In some cases the membership of the decisional majority may be the same as the membership of the topical majority and the membership of the decisional minority—those who voted against the injustice—may be the same as the membership of the topical minority.
  1. This is often true in the case of racial injustice for example: White legislators (decisional majority) vote for white privilege (topical majority); black legislators lose out in the struggle for equal rights for blacks.
10. Suppose that there is disagreement in a society about what the rights of a topical minority are. Assuming this disagreement has to be settled, the society will have to deliberate about it and apply its decision-procedures to the issue.
11. Suppose the society uses MD to settle this matter, I take part in this decision making, using my vote, and the side that I vote for loses. I am therefore a member of the decisional minority on this issue.
12. But so far it has not been shown that anything tyrannical has happened to me. To show that we would have to show two additional things:
  1. that the decision really was wrong and tyrannical in its implications for the rights of those affected; and
  2. that I was a member of the topical minority whose rights were adversely affected by this wrong decision.
13. The point to remember here is that nothing tyrannical happens to me merely by virtue of the fact that my opinion is not acted upon by a community of which I am a member.
  1. Provided that the opinion that is acted upon takes my interests properly into account along with everyone else’s, the fact that my opinion did not prevail is not itself a threat to my rights, or to my freedom, or to my well-being.
14. DWORKIN is not just making the familiar point that democracy depends (constitutively) on certain rights, like the right to vote or, indirectly, the right to free speech or freedom of association.
15. His point is more sophisticated than that. He maintains that processes like MD have no legitimacy at all in a democratic context (or any other context) unless EACH VOTER IS ASSURED THAT THE OTHERS ALREADY REGARD HIM WITH EQUAL CONCERN AND RESPECT.
  1. A bunch of terrorists deciding my fate by majority decision (even an MD process in which I am given a vote) has no legitimacy at all, because this background condition is not met.
  2. In general, Dworkin argues, a person can hardly be expected to accept majority decisions as legitimate if she knows that other members of the community do not take her interests seriously or if the established institutions of the community evince contempt or indifference toward her or her kind.
16. Suppose a piece of legislation is enacted by an elected assembly and then challenged by a citizen on the ground that it undermines right R, a right that is a condition of democratic legitimacy. We imagine that others will disagree, some because they think R is not a condition of democracy, others because they understand R in a quite different way. And suppose the issue is assigned to a court for final decision, and the court strikes down the statute, accepting the citizen’s challenge. Is there a loss to democracy?
  1. The answer, Dworkin says, depends entirely on whether the court makes the right decision. If it does—that is, if the statute really was incompatible with the rights required as conditions for legitimate application of MD—then democracy is surely improved by what the court has done, because the community is now more democratically legitimate than it would have been if the statute had been allowed to stand.
17. Even if people disagree about rights, they may take one another’s rights seriously. Decisional majorities may prevail. Sometimes they will be right about rights and sometimes they will be wrong. But that is something they have in common with all systems of decision making and that alone cannot undermine their legitimacy, so long as topical minorities have an assurance that most of their fellow citizens take the issue of their rights seriously.
18. Some say that-that a final decision about rights should not be left in the hands of the people. Rather, it should be passed on to an independent and impartial institution such as a court.
19. Rebuttal–
  1. Almost any conceivable decision-rule will eventually involve someone deciding in his own case.
  2. Unless we envisage a literally endless chain of appeals, there will always be some person or institution whose decision is final.
  3. And there are legitimate grounds for concern when topical majorities align with decisional majorities. (If this alignment is endemic, then I think we are dealing with a non-core case, for reasons I will explain in Part VII.) But it is striking how rarely this happens, including how rarely it happens in the kinds of cases that are normally dealt with by judicial review in the United States.
  4. Think of the two examples I mentioned earlier: abortion and affirmative action. In neither case is there the sort of alignment that might be worrying.
    1. Many women support abortion rights, but so do many men; and many women oppose them.
    2. Many African-Americans support affirmative action, but so do many members of the white majority; and many African-Americans oppose affirmative action.
    3. This is what we should expect in a society in which our third and fourth assumptions, set out in Part II, are satisfied.
    4. People who take rights seriously must be expected to disagree about them; but it is a sign of their taking rights seriously that these disagreements will be relatively independent of the personal stakes that individuals have in the matter.
NON CORE CASES
1. The arguments I have made so far are based on four quite demanding assumptions. What becomes of these arguments when the assumptions fail, or for societies in which the assumptions do not hold?
2. In sum, supporters of the practice will say we need judicial review of legislation in the real world, not the ideal world defined by my assumptions.
3. Rebuttals–
  1. First, the assumptions on which I have been proceeding are not unrealistic.
    1. Assumption three, for example—a general commitment to rights in the society—is fairly easily satisfied, given that the case for judicial review almost always assumes that somehow the society for which judicial review is envisaged has a Bill of Rights that stands in some real relation to the views of citizens.
  2. The first assumption was about electoral and legislative arrangements being in reasonably good shape, bearing in mind that even in the name of political equality we are not entitled to demand perfection.
4. What happens to the argument against judicial review if the assumptions fail?
  1. In cases in which the assumptions fail, the argument against judicial review presented in this Essay does not go through.
  2. However, it does not follow that judicial review of legislation is defensible whenever the assumptions fail. There may be other good arguments against judicial review that are not conditioned on assumptions like mine. Or it may be the case that judicial review offers no hope of ameliorating a particular situation.
  3. It may not be appropriate to set up judicial review of legislation if judicial decisionmaking in a society is no less corrupt or no less prejudiced than its legislative decisionmaking. The arguments we entertained for the core case were in large part comparative, and this logic applies to non-core cases as well.
  4. Vesting the final power of decision in courts may well make it more difficult to reform the legislature or more difficult to develop the legislative ethos that the first assumption, and perhaps also the third assumption, presuppose.
  5. That not every minority deserves this special treatment: certainly not every decisional minority, and not even every topical minority. There is no reason to suppose even that every chronic minority deserves this special treatment, certainly not chronic decisional minorities—Bolsheviks in the United States, for example.
  6. Not every distinct and identifiableMinority is Discrete and Insular. (comes from Caroline case of US)
5. What about the other criterion that Justice Stone mentioned—that the minority is the victim of prejudice?
  1. Pervasive prejudice is certainly incompatible with my third and fourth assumptions; it connotes indifference or hostility to the rights of the group’s members, and it may lead members of the majority to differ unreasonably from the minority members’ estimation of their own rights.
  2. Everything depends on whether judicial majorities are infected with the same prejudice as legislative majorities. If they are, then the case may be not only non-core but hopeless. A practice of judicial review cannot do anything for the rights of the minority if there is no support at all in the society for minority rights.
  3. Elective institutions may be better at protecting minority rights because electoral arrangements will provide a way of channeling popular support for minority rights into the legislature, whereas there are no such channels into the judiciary.
  4. No doubt, the distribution of support for minority rights varies from case to case. But I find it interesting that most defenders of judicial review, when they assume that there will be some support for minority rights in a society, are convinced that in all cases it will be found among elites if it is found anywhere.
CONCLUSION–
1. I have tried to show why rights-based judicial review is inappropriate for reasonably democratic societies whose main problem is not that their legislative institutions are dysfunctional but that their members disagree about rights.
2. Disagreement about rights is not unreasonable, and people can disagree about rights while still taking rights seriously. In these circumstances, they need to adopt procedures for resolving their disagreements that respect the voices and opinions of the persons in their millions whose rights are at stake in these disagreements and treat them as equals in the process.
3. Maybe there are circumstances—peculiar pathologies, dysfunctional legislative institutions, corrupt political cultures, legacies of racism and other forms of endemic prejudice in which these costs of obfuscation and disenfranchisement are worth bearing for the time being.
4. But defenders of judicial review ought to start making their claims for the practice frankly on that basis and make it with a degree of humility and shame in regard to the circumstances that elicit it rather than preaching it abroad as the epitome of respect for rights and as a normal and normatively desirable element of modern constitutional democracy.

Arguments in favour of Judicial Review and rebuttals. Why unelected judiciary should decide about my right?

Whether JR is constitutional difficulty or constitutional responsibility?

No constituency–
1. But they do have their own elite constituency.
2. Kundankulam plant example-they said that protestors have right to life against hazard but others also have development right.
3. So Judges do get swayed by who they see as their constituency.
4. Their constituency is Judges. Judges in India have only upturned amendments when it affected Judicial Power though they talked about basic structure in Keshawananda case. For example NJAC.
Politically Insulated–
1. No electoral compulsion does not necessarily means no political constituency or interests.
2. Judges come from elite homogenous group.
3. They get swayed by the ideas of people like them.
Counter-Majoritarian–
1. We should invest more time in making legislature better.
2. People know more about their candidates than Judges.
3. Ask a Rickshaw puller and law student about SC Judges and his MP/MLA.
4. Geeta Hariharan and Triple Talak case.
5. Judges generally come from non-minority communities.
6. So are we relying on tier goodwill or we assume that elites are better at protecting rights of minorities.
7. If minorities are not heard fairly in legislature, why we assuming that they will be heard in Judiciary?
Benefit of Hindsight–
1. More feedback mechanism in legislature than Judiciary
Giving Reasons-
1. But reasons and debate happen in parliament as well
Rights oriented/forum of principles
1. Judges have to argue from the point of rights and give reasons-
2. This leads to legislature dumping sensitive matters to courts.
3. For example-Triple Talak case, 377,
Expertise–
1. But legislature can also hire experts
Citizen Inputs–
1. More feedback mechanism in legislature than Judiciary
Individualised Justice–
1. But till it reaches higher court, it lose its individuality and becomes a matter of abstract right.
2. Other people impacted will be affected by individualised justice.
3. Geeta Hariharan case-interest of the child could have been different from interest of both parents
Possibility of Amendment–
1. This is tacit endorsement of legislature
Not a perfect solution but in an imperfect world, it is better than others.
1. Why cannot we not make legislature better, which is elected.
JUDGES TAKE RIGHT SERIOUSLY AND NOT SWAYED BY MAJORITARIAN SENTIMENT
1. BUT THE PRACTICES SAYS OTHERWISE.
Insulated from public pressure.
1. What about Jalikattu.
2. Babri Mosque case
Acting in broader public interest
1. Who is the public the judge has in his mind?
2. Kundankulam case
Additional mode citizen inputs
1. Extraordinary mode of input as it is counter-majoritarian.
2. Veto in the hands of few unelected people leads towards Juristrocracy-Harshel
3. Elites deliberately put strong judicial review in constitution to protect their own interest.
4. For example-SC protected the right of property of landlords during land reform.
OtherRebuttals–
1. If legislature process is problematic, then why not reform it.
2. Legislative Process LP is also deliberative.
3. Wouldn’t it be a better world, if legislature take the rights seriously.

PROJECT

To communicate an idea
Know your audience
To show that you have done research
What you can assume-an informed audience
Structure of Paper
1. Logical flow-
2. Flow chart on a piece of paper
3. Why one flows after other, what links up one from two
Research Methodology
Confirmation bias-You pre-decide a thing and then go on finding evidence in support that.

RONALD DWORKIN: MAJORITARIAN PREMISE

THE MORAL READING AND THE MAJORITARIAN PREMISE

Roe v Wade-Abortion Rights
Cruzan Case-Passive Euthanasia
NY Times v Sullivan-Free Speech
Moral readings of Constitution brings political morality into the heart of the constitutional Law
But political morality is uncertain and controversial
Liberal LJ and Conservative Judges CJ
Conservatives strongly disapprove on moral grounds the affirmative action programs and support freedom of speech FOS.
But Judges deny moral reading of constitution even though they do it.
Liberals call constitution a living document which must be brought up to date. They say that they take active approach to the constitution.
The theoretical debate was never about whether judges should interpret the constitution but about how it should be interpreted.
Dwight Eisenhower denounced Judicial Activism. Many president were determined to appoint judges who would respect people’s will.
Politicians fail to appreciate the moral reading embedded in the constitutional practice.
Any endorsement of moral reading is considered suicidal for the Judicial Nominee.
Most legislators regard the political structure that gives judges the final interpretive authority as elitist, anti-populist, anti-republican and anti-democratic.
Moral reading of constitution is practically indispensable to democracy.
THE MORAL READING
Bill of Rights in US Constitution protects individuals and minorities from government.
First Amendment-Right of Free speech
Fifth Amendment-Due Process of law
Fourteenth Amendment-Equal protection of laws
Most of the above are drawn in abstract terms and languages so there is room for disagreement over how they are to be applied.
According to Dworkin they commit US to the following legal and political ideals–
1. Govt. must treat all citizens as having equal moral and political status
2. To treat them all in good faith with equal concerns
3. It must respect whatever individual freedoms are indispensable to those ends.
Not all clauses of US Constitution are abstract and nor are all drafted in language of moral principle. For example-Age of President
History is important to the question of interpretation.
Discriminatory Jim Crow Practices and the equal protection of law. Those who drafted equal protection of law said nothing about racial segregation, gender equality, homosexuality etc. They only meant to enact a general principle. JCP was outlawed in Brown v Board of Education case.
Constitutional Integrity is another important feature of constitutional interpretation. Which means that judges should not read their own convictions into the judgement. They must regard themselves as partners with other officials, past and future who together elaborate a coherent constitutional morality.
1. For example one cannot interpret economic equality as redistribution of wealth or collective ownership etc because that does not fit American History or practice or the rest of the constitution.
2. Nor he should think that constitutional structure commits any basic structural political rights to his care.
3. The moral reading requires them to find the best conception of constitutional moral principles that best fits the broad story US’s historical record and not to follow the whisperings of their own class and caste.
Macauley said that US constitution is all sail with no anchor. Some say that moral readings make Judges the philosopher kings.
WHAT IS THE ALTERNATIVE?
To different strategies of constitutional interpretation-
1. Moral Reading–
  1. Insists that constitution means what the framers intended to say.
  2. But it denies that judges should have the final say to conduct the moral reading and reserves the interpretative authority to people.
  3. Justice Hand thought that court should take final authority to interpret constitution only when this is absolutely necessary to the survival of government.
  4. But practice has settled that courts act and declare on their best understanding of what the constitution forbids.
  5. If hand’s position has been accepted, then curt might not have outlawed the racial segregation laws in the famous Brown case in 1954.
2. Originalist Intention–
  1. Insists that constitution means what constitution makers expected their language to do.
  2. This would have led to contrary decision in the Brown case as authors of equal protection clause did not believe that racial segregation in schools was a denial of equal status.
  3. Foe these reasons, now no one embraces the originalist strategy in its pure form.
  4. But that does not mean that moral reading is endorsed.
3. Constitutional scholars often seek the middle way-to avoid the mistake of moral reading which gives too much power to the judges and originalist approach that makes the contemporary constitution too much the dead hand of the past. The right method is striking the right balance between protecting the essential individual rights and deferring to the popular will.
4. But they do not tell what that right balance is. Instead they say that constitutional interpretation CI must take both history and general structure of the constitution into account as well as moral or political philosophy.
5. Lawyers assume that counter-majoritarian feature of constitution is anti-democratic.
6. The only substantial objection to the moral reading which takes the text seriously is that it offends democracy.
7. So the academic argument is that how far democracy can be properly compromised in order to protect other values including individual rights.

Dworkin’s conception of democracy means that equal concern and respect for everyone

THE MAJORITARIAN PREMISE MP
1. There is a lot of disagreement about what democracy is-
2. Majoritarian Premise MP
  1. MP does not deny individual moral rights
  2. In US, most people think that on some occasion, will of majority should not govern-Case of Brown v Board of Education
  3. MP presupposes that it is always unfair when a political majority is not allowed to have its way.
3. Constitutional Conception of Democracy CCD rejects MP
  1. According to CCD, collective decisions must be made be made by political institutions who treat all members of community as individual with equal concern and respect.
  2. But CCD also demands same structure of governance as MP does.
  3. CCD takes the following attitude to majoritarian government-
    1. That democracy means government subject to conditions-
      1. Of equal status for all citizens.
      2. Requires that public offices should be open to members of all races and groups.
4. MP holds that Judicial Review compromises democracy.
5. So central question should when such compromise can be justified?
6. Buckley v Valeo stuck down laws limiting what rich individuals can spend on political campaigning.
7. Evaluation of arguments for and against MP
  1. The most powerful argument for MP are arguments of Political Morality and are grouped under the virtues of Equality, Liberty and Community.
ARGUMENTS FOR MAJORITARIAN PREMISE-
1. WE THE PEOPLE-
  1. People collectively do things however Statistical or Communal.
  2. Collective Function CF is Statistical when what the group does is only a matter of function of what individual members of the group do own their own with no sense of doing something as a group.
    1. For example-foreign exchange market droving down the price of dollar.
  3. Collective Function CF is Communal when it cannot be reduced to statistical function of individuals. It is a matter of individuals acting together in a way that merges their separate actions into a further unified act.
    1. For example-Germans collectively feeling responsible for what other germans did because they belong to the nation that committed the crime.
  4. Political decision is made by majority or plurality of individual citizens.
  5. Two readings of the idea that democracy is a government by people-
    1. Statistical Reading–
      1. That political decisions are made in accordance with the votes or wishes of some function-a majority or plurality of individual citizens.
      2. It fails MP.
    2. Communal Reading–
      1. That political decisions are made by a distinct entity-the people as such rather than by any set of individuals one by one.
      2. That people are in acting in concert as in a symphony. That political decisions should be taken by people as such rather than set of individuals.
      3. CR may sound totalitarian
  6. Does constitutionalism undermines liberty?
    1. Constitutionalism protects negative liberties such as free speech and privacy at the const of positive freedoms of self determination.
    2. Self-determination SD is the most potent and dangerous political ideals of our time. They want to be governed by group not just to which they belong but with which they identify in some particular way such as religion or race.
    3. We think were are free when we accept a majority decision but not when we bow before the doom of the monarch.
    4. Statistical Reading fails to insure liberty.
      1. For example-I as an individual have very little power to sway the decision making.
      2. Am I really have liberty or just bending in with the Majority?
      3. Only when we act in collective sense, we have control over the decisions and discharge over the governance of the country.
      4. But then it requires Moral membership.
      5. What could genuine membership in a political community mean?
      6. And in what sense can a collective act of a group can also be the act of each member?
  7. Conditions of MORAL MEMBERSHIP–
    1. Equal part in decision making
    2. Equal stake in decision making
    3. Independent views in decision making
  8. If true democracy is government by people in communal sense that it provides self-government then true democracy is based on moral membership.
  9. Flouting of MP results in loss of liberty.
  10. MP does not guarantee self-government unless all members in a community are its moral members and MP acknowledge no such qualification.
    1. For example Jews.
    2. Similarly all separatist believe that they are not moral members of the state.
  11. CCD pre-supposes democratic conditions–
    1. Conditions of moral membership in a political community.
  12. What are the conditions of moral membership and hence of positive freedom and hence democracy on constitutional conception?
    1. Structural Conditions of Moral Membership–
      1. The character that the community as a whole must have if it is to count as a genuine political community.
      2. Community must have been established as a historical process that has produced stable and recognised territorial boundaries.
      3. Community must share common political History, common language, common values etc.
      4. Members of the community are fairly disposed to trust one another.
    2. Relational Conditions of Moral Membership–
      1. How an individual must be treated by genuine political community in order to be its moral member
      2. Part of collective decision making process
      3. Opportunity to make a difference in the decision making
      4. Universal suffrage and effective elections
      5. Free speech and expression in both formal and informal occasions
      6. Political process of a genuine community must express some bona-fide conception of equal concern for all members on matters of wealth distribution, benefits etc.
      7. Reciprocity-a person is not a member unless he is treated as such by others
  13. Communal Conception of Democracy-a society in which the majority shows contempt for needs and prospects of some minority.
  14. The idea that individual freedom is furthered by collective self government assumes that members of a political community can regard themselves as partners in joint venture like members of a football team or an orchestra whose work and fate all share.
  15. A genuine political community must be a community of independent moral agents. It must not dictate what its citizens think about matters of political, moral or ethical judgement but must on the contrary provide circumstances that encourages them to arrive at beliefs on these matters through their own reflective and final individual convictions.
2. EQUALITY–
  1. Political Equality of status.
  2. If a society’s economic structure is pyramidical with more people at lower economic level then universal suffrage and majoritarian decisions might push towards greater equality.
  3. But in US and other advance capitalist countries this is not the case as people in majority often vote to protect their own wealth against the demands of those worse off then they are.
  4. If we take government by the people to be only a statistical matter, then equality in question is the political equality of citizens taken one by one. This was denied in Victorian Britain where University graduates had extra votes.
  5. We cannot capture political equality if we define it as equality of political power in terms of political impact I as an individual make on collective decision making.
  6. Inequality of wealth allows some people to influence public opinion.
  7. Trump and I have one vote each but trump can buy massive television time to influence others opinion.
  8. We certainly do not want everyones’s influence to be equal for other reasons-we want those with better views have more influence.
  9. Political equality on the statistical model of collective action must be defined as a matter not of power but of the kind of status in connection with conditions of democratic self-government.
    1. Difference between male only suffrage and more power attached to a government office.
  10. In a large continental democracy, any ordinary citizen’s political power is miniscule.
  11. Political equality is the state of affairs in which people rule their officials rather than vice versa.
  12. It doesn’t of high offices takes decision on our behalf as long as these offices are open to all.
  13. If these are the conditions of democracy then Majoritarianism will fail us. So there is nothing if another institution steps in and corrects the majoritarian mistakes. That’s JR.
3. COMMUNITY
  1. In recent years opponents of moral reading have began to appeal to community (fraternity) rather than to either liberty or equality.
  2. That moral reading assigns the most fundamental political decisions to an elite legal profession which weakens the public sense of community.
  3. But they rely on dubious assumption-that public discussion of constitutional justice though legislature is of a better quality than if decided by courts.
  4. Although legislative decision may be of high quality but majoritarian process encourages compromises that may subordinate important issues of principle. Constitutional legal cases on the other hand can provoke a widespread public discussion that focuses on political morality.
WHAT FOLLOWS?
1. Even if an unelected expert or oligarchy provide better legislations than the elected legislature, there would be a loss in self-government.
2. The question is whether we can be better off with JR?
  1. Burning flag example-courts decision of outlawing the flag burning law enhanced democratic principles of speech and expression and not violated it. If the court has not intervened, everyone would be worse off.
  2. Of course none of these are true if we assume court decision to be wrong.
3. Errors in Court decisions are symmetrical to errors made by legislature.
4. How should a political community that aims at democracy decide whether the conditions that democracy requires are met?
  1. Written constitution or Judicial Review or what?
5. When courts have power to enforce some constitutional rights, it does not mean they they have power to enforce them all.
6. Result driven standards are better than procedure driven standards in deciding the problems of institutional questions and problems of democratic conditions.
7. People can be expected to disagree about what structure is overall best if they have to start from the scratch.
  1. Thats why initial making of political constitution is done by super-majorities with near unanimity.
  2. The situation is different however when we are interpreting an established constitutional practice and not starting a new one.
  3. The authority is already distributed by history and details of institutional responsibility are matters of interpretation and not of invention from nothing.
  4. In these circumstances rejecting the Majoritarian Premise means that we may look for better interpretations with a more open mind than some majoritarian mould.
8. Democracy presumes equality and liberty. It is possible only when people are free and equal, when they are moral members of the community. And if JR ensures that, there should be no problem. So JR should be looked from the whole system as to what purpose it is designed to serve.
COMMENTS AND CAUTIONS
1. It is no surprise that constitutional theory reflects a moral instance.

PRATAP BHANU MEHTA: SUPREME COURT LEGITIMACY

THE INDIAN SUPREME COURT AND ART OF DEMOCRATIC POSITIONING

Promiscuous role of Indian Supreme Court. Is the expanded role of Judiciary justified?
Since Judges are bound by the text of the constitution, they routinely justify their rulings on these basis.
Judges are the creators and arbiters of the meaning of constitutional text.
1. For example-in case of right to life, judges have read all sorts of interpretations to it so much so that they are not just bound by semantics but they exercise sovereignty over the meaning.
Legal reasoning exists to serve certain broad needs and expectations of society and no sets of formal restraints can deter how judges serve those needs and expectations.
Rise of Institutional Theories-
1. Are courts better at performing the tasks that they do perform?
2. There is a broad movement in liberal democracies towards enhancing the power of unelected institutions.
  1. Some argue that in this manner upper classes continue to exercise influence in the face of being challenged by democratic upsurges from below.
  2. This argument has one implicit standard for critiquing Judicial power-The idea that judicial power must be accessed from the perspective of those whose class interest it serves.
3. There is presumptive suspicion on Judicial power that it empowers elites in two ways–
  1. The values and prejudices of Judges as a class.
  2. Resources required to access the Judiciary is predominantly vested in Elites.
4. The people’s Court is just a rhetoric.
  1. It is difficult to argue that Judiciaries have been potent instruments of addressing structural inequalities or empowering poor.
  2. In India’s case for examples-
  3. Court paradoxically made it possible to dispossess the poor of their land under eminent domain.
  4. In case of India, court has provided enough to be a locus of hope but also restrained itself in its actual effect so as not to provoke a backlash.
5. What is the degree of legitimate Judicial intervention?
  1. To the extent that it does not provoke formally or informally democratic backlash.
Public Reasons–
1. This is the Habermaisan idea that what judges should do is not appeal to reasons that they believe to be right but to reasons that they sincerely believe that other reasonable people would and should accept as justification.
2. This theory argues that what courts are promulgating is not their own normative predilections but rather the advancement of public reason.
3. Distinction between Transient Legislative Majorities TLM and the will of the people.
  1. TLM may subvert popular sovereignty.
  2. In such as a case judicial power becomes necessary to preserve our status as free and equal citizens.
4. Representation refers to process of popular authorisation.
5. What roles can court perform in bridging the gap between legitimacy and representation in other areas as well including policy formulation?
6. Conception of public reason wrestles with a challenge-
  1. What reasons would be acceptable to all in the face of deep disagreement.
The constitution of Accountability-
1. Public Legitimacy
  1. Indian SC has played an important role in preserving democracy through the idea of basic structure.
  2. They have also greatly expanded the ambit of rights through a creative interpretation of Article 21.
  3. Courts also have increasingly become institutions of governance.
  4. SC may have overstepped its bounds but it has deepened democracy.
  5. One easy test of democratic legitimacy is
    1. Whether court’s decisions are overturned by the legislature or whether a backlash is provoked?
    2. For example in case of reservation any attempt by SC to roll back, limit or clarify the terms of reservations have been swiftly countered by constitutional amendments. (PA Inamdar v State of Maharashtra 2005 6 SCC 537)
  6. Another case is of court providing an exception to its own 51% ceiling on reservation in TN where reservations are as high as 69%.
  7. There are exceptions as well.
    1. For example striking down of NJAC.
  8. SC is looking outward to a conception of public legitimacy in the name of democratic and social purpose rather than inward to the text of the law or upward to a self-evident provision in the constitution.
  9. To paraphrase Deng Xiaoping-What does it matter of the cat is black or white as long as it catches the mice.
  10. Operating within the horizons of democratic legitimacy poses another challenge.
    1. For example in case of PIL-How do courts discipline their reasoning on what count as public interest.
2. The accountability Court–
  1. During 1950’s and 60s court’s main role was a bastion of procedural safeguards.
  2. During 1960 and 70s, legitimacy of executive was eroding in an era of great political tumult.
  3. SC perceived two threats to constitution-
    1. That democracy might come under threat and that it needed to draw a red line over the extent to which transient majorities could alter the constitution-Golaknath and Keshawananda Bharti cases.
    2. That executive would interfere more with the judiciary.
  4. Post emergency, it rehabilitated itself in three different ways-
    1. It began to expand the scope of rights to include social and economic rights.
    2. SC made DPSP justifiable through Article 21.
    3. It innovated through the creation of PIL, that relaxed the rules on standing and made the court more accessible in matters relating to public interest.
    4. It began to assert its supremacy over judicial appointments in the name of judicial independence.
    5. Arguably none of these moves were a function of reading of constitution.
  5. With the beginning of 21^st century, SC took on accountability as political corruption became the central democratic anxiety.
  6. 3 caveats–
    1. In the case of civil, rights SC has not always provided the strongest protections.
    2. For example-
      1. it upheld the constitutional validity of AFSPA 1958,
      2. refused the publication of a book on Basaveshwara and
      3. overturned the decriminalisation of 377.
    3. Not a monolithic institution due to short tenure of CJIs and resulting frequent overhauling of benches.
    4. Even when it expanded the scope of rights, it did in a way so as not to impinge seriously on the fundamental working of electoral democracy. There is ‘strong courts, weak rights’ paradox of Indian courts in contrast with the ‘weak court, strong rights’ elsewhere.
      1. In Olga Tellis case, though SC recognised the right to shelter, however this right turned out to be limited merely to protection against being evicted for a few weeks and it did not impose much cost to the state.
3. The court as an instrument of accountability–
  1. In Vineet Narain (1998) grounds for judicial intervention in corruption cases were established in which Justice seven principles of ‘Standards in public life’
  2. This was followed by SC invoking the doctrine of continuing mandamus, which involved measures such directly supervising corruption investigations.
  3. From late 1990s onwards, SC has been projected itself as a major anti-corruption player. This has been possible due to two reasons-
    1. The number of actual prosecutions of high-profile politicians was minuscule and the arguments were made that court is against corruption and not necessarily against corrupt politicians.
    2. Even if lower courts delivered guilty pleas, politicians could continue their career as long as the case was in appeal.
  4. In K Prabhakaran (2005), SC had left open the possibility that legislator for certain purposes may be singled out as a special class, provided there was a reasonable public justification for doing so.
  5. But after the popular uprising against corruption in 2013, court started taking less sympathetic view over argument of letting corrupt politicians continue as long as their cases were in appeal.
  6. In Lily Thomas (2013), court held that a legislator would be disqualified if convicted by a lower court.
  7. There are problems as well with such convictions of MPs or MLAs especially if the government enjoys thin majority. So it would be better to have a superior judge ascertain that lower court judgement was not mala-fide or erroneous.
  8. In the Telecom case SC invalidated government’s award of spectrum licences to several telecom companies after CAG report alleged that their award caused major loss to public exchequer. SC held that allocation of natural resources was a public good and hence is within Judicial purview. It also held that they should be allocated via auction.
  9. The immediate risk is that CBI has been made more powerful.
  10. In Vineet Narain case SC identified two bottle necks-
    1. CBI’s functioning
    2. Sanction for prosecution
  11. SC tried to fix the second by stipulating a three month period. But this is not good for honest public officials who may be wrongly prosecuted for standing in way of government.
  12. Discretion has become a dirty word. It has become synonymous with arbitrariness.
  13. There is a tendency in judiciary to suspect exercise of judgement and overcompensate for peddling the illusion that rules are the only effective way to check arbitrariness. In Telecom case both, judiciary and government committed this fallacy.
  14. Government was unable to defend its policy. SC should have concluded that revenue maximisation is not a worthy objective for government and hence giving the spectrums at low cost for facilitating growth of technology might be conducive for consumers, provided there is clear public justification.
  15. The other issue not properly addressed was right of investors. To send a message court cancelled all licences without providing individual hearing.
  16. The real issue if state makes a mistake and twenty years later a private party that was beneficiary of that particular contract with state is caused to suffer because of procedural mistakes of state, what protection does it have?
  17. How a private citizen is supposed to know whether state did its procedural due diligence?
  18. There is little protection for good faith investors.
  19. There is a vast range of areas in which this is at issue.
  20. For example in cases of land acquisition, if state does not conduct social-impact assessment, should the cost be borne by only the private party that accepted the contract in good faith?
  21. Court implicitly used the suspicion of crony capitalism to deny justice to individual litigants.
  22. Court detected a massive wrongdoing on part of state but did not fix responsibility.
Conclusion–
1. Normative theories of Judiciary’s role do not capture what courts actually do in India.
2. Judges are constantly driven by considerations of their legitimacy.
3. SC’s recent role in terms of flag-bearer of accountability.
4. Chasm between judiciary’s and legislative’s understanding of what the constitution requires is widening.
5. SC has major success in articulating a democratic norm such as accountability but at the cost of more nuanced issues such as individual rights, fair process etc.
6. It has also made more difficult to predict what will satisfy the court’s conception of PUBLIC REASON.
7. Important principles such as judicial independence, basic structure, separation of power, public interest etc on which SC has expanded its power are too abstract to know where they will apply.
8. In a recent case on legality of tribunals, SC contended that tribunals constituted under National Tax Tribunal had not only usurped the power of HCs but also their methods of appointments do not meet the norms of independence that may be required in a quasi-judicial tribunal.
9. The reasoning is clear but the question is which standard a tribunal must meet to pass this test?
10. Did NGT pass the test because it was constituted under the supervision of SC?
11. There is always a backlash to SC’s intervention.
  1. The risk is greater when court loses comparative legitimacy on issues such as corruption within its ranks.
12. SC is also concerned about its image, public perception, just like any other political actor does.
13. SC is not a counter-majoritarian institution. It keeps positioning and repositioning in line with majoritarian impulses and is concerned about people’s perception.
14. SC is also a political institution which keeps negotiating with other political forces to ensure that its own democratic legitimacy is maintained.
15. Judges have more power than just the written text but not as much as we think.
16. Baxi says that its not only the judges who interpret the constitution but interpretation of citizen which creates the public discourse has great impact on Judiciary.

CHINTAN CHANDRACHUD: CONSTITUTIONAL INTERPRETATION

Interpretation is about how do judges determine the meaning of the law. When you have multiple meaning, how do judges decide which meaning to subscribe?
Broadly there are two distinct type of Approaches-
1. ORIGINALIST–
  1. What author meant? What was the intention of framers?
    1. Objectified Intent-
      1. If framers did not say anything, then that should be decided by legislature.
    2. Original meaning of the word in those times.
      1. But it doesn’t solve meaning of abstract words such liberty.
    3. Skepticism about the Dead hand of the past guiding us now
  2. Original Intent (Historical)–
    1. Problem-Jim crow law-fourteenth amendment-Brown v Board of Education case.
    2. But there was also a huge black civil rights movement. US govt. send forces to implement Board decision.
    3. In India we have similar cases such as Vishakha but govt. didn’t send forces to implement it.
    4. Due process of law v Procedure established by law-taken from Japan
    5. The problem is whose intentions to look at amongst plethora of framers.
      1. There is an assumption that its very easy to look at invention of a body.
      2. But in realty its difficult to figure out single original intention.
      3. Can we transpose intention of Ambedkar as intention of whole CA.
      4. Cow slaughter provision in DPSP-whether to look at intent of drafter or right wing who wanted it to be there.
    6. English Doctrine-You can’t look at legislative debates to figure out intention of statute.
      1. In India too, SC said in AK Gopalan the CAD can’t be relied upon for intention of CA.
      2. But in Keshawananda it was reversed and court said that CAD can be looked at to derive intention of constitution.
    7. Don’t look at intention on specific issue but broad overarching principles and structures.
      1. For example-whether caste and religion based segregated housing is violation of FR.
      2. They might not have specific intention on this.
      3. Other example is of Federalism vis-a-vis question of statehood of Delhi.
      4. Whether it is part of Basic structure?
    8. Other Problems-
      1. Societies change over time and meanings as well.
      2. Difficult to derive common intention and meaning of framers.
      3. With time constitution becomes more and more obsolete.
      4. Constitution making process is messy.
      5. History lies in the eyes of the beholder.
      6. Excavating Historical truths is not an objective exercise.
      7. Dead hand of the past. Should the words of CA on Right to be privacy be binding on us today? CA said no to right to privacy. 2017 Puttuswamy.
        
        On question of Death Penalty, lots of discussion took place in CA but finally the motion was negatived.
        
        Whether India can establish State religion? Is there anything to stop state from doing so? Article 28.
        
        Privacy–
        
        Which interpretation can equivocally decide all these questions.
      8. Ends up putting very restrictive limitations on legislature. Kharak Singh case and latest use of technology such as Drone surveillance.
      9. II amendment and gun rights in US-broad rights to individuals in terms of carrying weapons.
      10. Heller case-gives very broad interpretation to II amendment relying on originalist interpretation. Justice Scalia is a big proponent of Originalist intention.
    9. Hypothetical intent–
      1. How framers have looked upon the current issue?
      2. But it’s so abstract. It also presupposes that there is a single consistent set of purposes which will run in a particular way.
      3. For the constitution to endure and stable, it is necessary for it to adopt to avoid getting disconnected from realities of todays societies.
      4. Framers could not be aware of todays problem.
      5. Equality has different connotation in US when it was conceptualised.
      6. They use abstract words for these reasons only.
2. LIVING TREE DOCTRINE
  1. That these texts were not only meant for author’s time but for the present also.
  2. In light of contemporary expectations-
  3. What documents?
    1. Contemporary scientific studies, eminent scholars
    2. Comparative analysis
    3. Surveys, editorials, opinions
    4. Law commission reports
    5. Parliamentary standing committee PSC reports
  4. How you would do either of these?
  5. For example-
    1. S.15 which says that state shall not discriminate on the basis of sex.
    2. What does sex means? Does it include sexual orientation? Navtej Johar case
    3. If there is nothing to indicate that, then u simply go to legislature to amend that to include that.
  6. Reasons for constitutional interpretations-
    1. So that one can judge the judge when they interpret the constitutions
    2. Way in which we can bound judges from adjudicating anything.
    3. Even certain principles bound living tree doctrine as well
    4. Citizen discourse plays a huge role in the way judges interpret
      1. For example–
        
        Today an SC judge cannot justify Varna System without facing a huge of backlash.
        
        Its not the case that we no longer are casteist society but we just no longer acknowledge it.
3. POPULAR CONSTITUTIONALISM-providing various limits-not to put majoritarian impulse.
  1. Difference between constitutional and social morality
  2. It sets up a descriptive theory and not a normative one.
    1. Judges own conception of public value.
    2. Their own understanding of their own role, power etc all of that will depend upon the legal constitutional culture.
    3. Judges are not self-reflective about that.
    4. They operate within their own interpretative community.
  3. M. Nagraj v UOI
    1. Constitution is not an ephemeral
  4. SCAORA v UOI 1993
    1. Framers of the Constitution planted in India a living tree capable of growth and expansion within its natural limits. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Constitutional law cannot be static if it is to meet the needs of men. New situations continually arise. Changes in conditions may require a new-look at the existing legal concepts. It is not enough merely to interpret the constitutional text. It must be interpreted so as to advance the policy and purpose underlying its provisions. A purposeful meaning, which may have become necessary by passage of time and process of experience, has to be given. The Courts must face the facts and meet the needs and aspirations of the times.
    2. The case before us must be considered in the light of our entire experience and not merely in that of what was said by the Framers of the Constitution.
    3. The Constitution has not only to be read in the light of contemporary circumstances and values, it has to be read in such a way that the circumstances and values of the present generation are given expression in its provisions. An eminent jurist observed that “Constitutional interpretation is as much a process of creation as one of discovery”.
    4. Said that consultation means concurrence.
  5. We are concerned about those cases where framers go in other way and our contemporary values go in other way? What happens in those cases?
The Indian Supreme Court does not sit en banc, but instead in separate benches or panels of judges. Article 145(3) of the Constitution requires all substantial questions of law involving interpretation of the Constitution (an expression that is not defined by the text) to be decided by benches of no less than five judges (known as constitutional benches). The Court sees safety in numbers, because larger benches of the Court bind smaller benches,” and a judgment of the Court can only be overruled by a bench of a larger size. The Chief Justice plays the leading role in setting rosters and making decisions about bench composition.
The interpretive approaches of the Supreme Court can be expounded through three historical phases.
1. In the first phase, the Court relied heavily on textualism, reading the Constitution word for word, without reflecting on its overall structure and coherence.
2. In the second phase, the Court’s interpretive approaches were more eclectic, focusing not only on the text of specific constitutional provisions, but also on the structure and themes embodied within the Constitution more broadly. During both of these phases, most Significant interpretive decisions were entrusted to constitutional benches and were the product of careful reasoning.
3. In the third phase, however, the Court moved to an approach that I describe as ‘panchayati eclecticism: To some extent, it relinquished its responsibility to give reasons. Sitting in benches of two or three judges, the Court (or more fittingly, its smaller ‘sub-courts’) started deciding cases based on self-conceptions of its own role, resulting in the adoption of a variety of internally inconsistent interpretive approaches, and often producing incoherent constitutional jurisprudence.
How to read constitutions?
1. Constitutions are framed at a high level of abstraction, enabling those that work them some room for manoeuvre in coping with unforeseen challenges.”
2. Constitutional interpretation is the product of two meta-judgments.
  1. First, what is the legitimate source of the constitution’s authority? Possible responses could rely on the credentials of the body that framed the constitution, the fact that the constitution was accepted as a legitimate pre-commitment at its founding, or that the constitution is still accepted as a social fact by the people it governs.
  2. Second, based on the source of the constitution’s authority, what are the tools and techniques that can be relied upon in order to expound constitutional meaning? So, for example, is it permissible to cite the views of individual framers of the constitution, Constituent
  3. Assembly debates, or dictionaries to understand the implications of a broadly worded equality clause?
3. Philip Bobbitt identifies six approaches to constitutional interpretation:
  1. Historical (or Originalist)-leans heavily upon what a particular constitutional provision would have meant to its framers. The focus is on the subjective intent of the framers, and how they would have wished the constitutional provision to operate within the confines of a particular case.
  2. Textual-Textualism also focuses on the specific words of a constitutional provision, but requires interpreters to consider the ‘present sense’ of the text, rather than the meaning of the text at the time that it was enacted.’
    1. For example-meaning of law, equal, liberty. The plain meaning doesn’t really guide you.
    2. Over the years, meaning of words itself change. For example meaning of “Amusing, awful and artificial’ in 16^th century England had very positive meaning.
    3. Meaning of Person-When life begins in a foetus?
  3. Prudential-the prudential approach focuses on the use of pragmatic logic in the shaping of constitutional doctrine, and generally has traction in periods of emergency and unrest.
  4. Doctrinal-The doctrinal approach considers the constitutional text as only a limited piece of the evidence required to interpret the constitution, forming part of a line of precedents expounding upon the meaning of the constitutional provision. Most Supreme Court judgments are expected to be heavily precedent-laden, which means that the doctrinal approach undergirds the other approaches adopted by the Court.
  5. Structural-Both structural and ethical approaches rely on inference rather than on close reading of text. Structural arguments rely on the structures of government set up by the constitution, whereas ethical approaches appeal to aspects of cultural ethos that are reflected in the constitution.
  6. Ethical–Moral, political and canonical standards. That the right to life and personal liberty existed even in the absence of Article-Khanna J in Keshawananda Bharti case

PHASE I-TEXTUALISM

K. Gopalan v State of Madras 1950was one of the early decisions in which the Court was called upon to interpret the fundamental rights under Part Ill. The case was a habeas corpus petition filed by the leader of the CPI, who had been detained under preventive detention legislation. He claimed that the legislation was inconsistent with Articles 19 (the right to seven freedoms), 21 (the right to life), and 22 (the protection against arrest and detention) of the Constitution.
1. Kania CJ, for the majority, adopted a black-letter approach, construing the constitutional text based on its plain meaning. He held that the expression ‘procedure established by law‘ must mean, based on its ordinary interpretation, the procedure prescribed by the statutory law of the State.
2. On the second question, he decided that Articles 19, 22 and 22 covered entirely different subject matter, and were to be read as separate codes.
3. This textualist approach was unsurprising, given that the judges were trained in British interpretive traditions.
Amongst the most controversial questions in Indian constitutional jurisprudence has been whether there are any limitations on Parliament’s power to amend the Constitution, especially fundamental rights.
1. Article 368 enables the Union Parliament, by two-thirds majority, to amend the Constitution. Amendments to fundamental rights under Part III do not require the ratification of States.
2. Article 13(2) provides that ‘The State shall not make any law which takes away or abridges the rights conferred by this Part [the chapter on fundamental rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void:
3. The Constitution was amended eight times in its first ten years.
4. A question that frequently arose was whether the word ‘law’ in Article 13(2) included constitutional amendments. If it did, then the chapter on fundamental rights would be rendered immune from amendment.
This question arose tangentially before five-judge benches of the Supreme Court, first in Sri Sankari Prasad Singh Deo v Union of India 1951and later, in Sajjan Singh v State of Rajasthan 1964
1. In Sankari Prasad, the Court adopted an avowedly textualist approach, finding that any intended limitations on the power to amend fundamental rights would have been clearly expressed in the text of Articles 13(2) and 368.
2. Gajendragadkar CJadopted a similar semantic intentions-based textualist approach in Sajjan Singh,holding that if the framers had intended to restrict future amendments to Part Ill, they would have made a specific provision manifesting that intention.
3. He also categorically rejected an ethical approach to interpreting Article 368, noting that it was illegitimate to construe that provision ‘on any theoretical concept of political science’.
4. Hidayatullah J and Mudholkar J expressed scepticism about whether the power to amend the Constitution implied a carte blanche to amend fundamental rights.
Following amendments to the Constitution seeking to protect land reform measures from judicial scrutiny, the same question arose before an eleven-judge bench of the Supreme Court in Golak Nath v State of Punjab 1967
1. On this occasion, the majority on the Court reversed its position on the amendability of fundamental rights.
2. However, the approaches to constitutional interpretation remained largely the same: textualist arguments attracted significant traction in the majority and the minority opinions.
3. The arguments did not centre on how to interpret the Constitution: all the judges seemed to agree that textualism was the pre-eminent approach.
4. Rather, differences between the majority and the minority hinged on what the outcome of a legitimate textualist interpretation would be.
5. In the majority, Subba Rao J held that the open-ended definition of the word ‘law’ under Article 13(3)rendered the term wide enough to include constitutional amendments.
In MSM Sharma v Sri Krishna Sinhathe Court was called upon to decide the precise nature of the relationship between parliamentary privileges and the freedom of speech.
1. The case arose in the context of a notice for breach of privilege issued against a journalist for publishing parts of a speech, made in the Bihar Legislative Assembly, that were expunged from the record.
2. Das CJ held that the freedom of speech, which was a general provision, would yield to parliamentary privilege, which was a special provision.”

PHASE II-STRUCTURE-DOMINATED ECLECTICISM

Although textualism continued to appeal to the judges, it was gradually overtaken by structuralism, and occasionally supplemented by other methods of interpretation, such as ethicalism.
The leading case of Kesavananda Bharati v State of Kerala 1973demonstrates this shift in interpretive methodology.
1. The majority on the Court is understood to have held that parliament can amend any provision of the Constitution (including fundamental rights) so long as it does not alter, abrogate, or destroy the ‘basic structure‘ or ‘essential features’ of the Constitution-an open-ended catalogue of features that lies within the exclusive control of the Court.
2. Textualist arguments continued to hold sway, both for the judges who subscribed to the ‘basic structure’ notion and for those who held that there were no substantive limitations on Parliament’s amending power.
3. Justice Khanna pointed out that the word ‘amendment’ in Article 368 necessarily implied that the Constitution, post-amendment, would continue to subsist without a loss of identity.
4. Palekar J held that if the framers considered it necessary to exempt any part of the Constitution from amendment, they would have done so in Article 368 itself, as was done in Article V of the US Constitution.
5. Beg J refused to acknowledge any distinction between ‘more basic’ or ‘less basic’ parts of the Constitution, arguing that no such limitation was provided for in the text.
6. Shelat J and Grover J held that the word ‘amendment’ in Article 368 needed to be construed with reference to the scheme of the Constitution as a whole.
7. Sikri CJ relied on intra-textualist argument, highlighting that the word ‘amend’ was employed to mean different things in different provisions of the Constitution-its real content could only be gleaned with reference to the structure of the Constitution. Still others, such as-
8. Hegde and Mukherjea JJ, relied on both textual and structural” arguments in support of their conclusions.
In ADM Jabalpur v Shivakant Shukla 1976,the Supreme Court was tasked with deciding the politically charged question of whether detainees could challenge their detention in habeas corpus proceedings.
1. In a partial retreat to textual interpretation, the majority held that there was no right of personal liberty that existed above and beyond that specified in the Constitution.
2. However, Khanna J (who had adopted a textualist interpretation in Kesavananda Bharati), in a dissent likened to that of Lord Atkin in Liversidge, embraced an ethical approach by stating that the right to life and personal liberty existed even in the absence of Article.
The strides towards structuralist interpretation made in Kesavananda were consolidated by a five-judge bench of the Supreme Court in Minerva Mills v Union of India 1980 Parliament sought to overturn. the basic structure doctrine by adding the following sub-clauses to Article 368.
1. (4) No amendment of this Constitution made or purporting to have been made under this article … shall be called in question in any court on any ground.
2. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
3. However, the Court made a critical move in favour of structuralist justifications for the basic structure doctrine.”
  1. Chandrachud CJ struck down the amendment on the basis that the limited power to amend the Constitution was itself a basic feature, which Parliament had no power to transform into an unlimited amending power.
  2. Under challenge in Minerva Mills was also a constitutional amendment” seeking to insulate laws enacted in furtherance of the DPSP under Part IV of the Constitution from judicial review, on the basis that they violated Articles 14, 19 and 21.
    1. The Court adopted a similarly structuralist approach to interpreting this amendment, holding that Articles 14, 19, and 21 constituted a ‘golden triangle’ of rights that preserve the dignity of the individual, and that the amendment impermissibly sought to negate two sides of that triangle.
4. Later, the Supreme Court categorically rejected the Gopalan approach in favour of a structuralist one in Maneka Gandhi v Union of India 1978, which involved a challenge to a statutory provision under which the passport of the former Prime Minister’s daughter-in- law was impounded for political reasons.
  1. This structuralist conceptualisation of fundamental rights had profound implications, because the State would no longer be able to claim the refuge of the limitation clause of a single fundamental right. Even if it did so, it would still need to establish why other overlapping, interrelated rights remained sufficiently unaffected.
  2. The Court in Maneka Gandhi also made it clear that ‘procedure established by law‘ for the purposes of the right to life did not only provide a guarantee of procedural due process, but also included a substantive component.
    1. It held that even a procedure provided for by way of primary legislation would need to be ‘fair, just and reasonable, not fanciful, oppressive or arbitrary and should be ‘carefully designed to effectuate, not to subvert, the substantive right itself.
  3. This was coupled with a wide reading of the phrase ‘personal liberty’ which opened the door to the inclusion of a wide range of unenumerated rights under Article 21.
  4. Article 21 was incrementally interpreted to include the rights to privacy, pollution-free air, reasonable accommodation, education livelihood, health, speedy trial, and free legal aid.
5. During this phase, the Supreme Court decided three important cases on the interpretation of constitutional provisions dealing with APPOINTMENTS TO THE HIGHER JUDICIARY. Article 124(2) provides that Supreme Court judges will be appointed by the President (on the advice of the Union government) after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary, and in the case of all appointments other than that of the Chief Justice, the Chief Justice shall always be consulted.
  1. SP Gupta v Union of India 1981” arose out of writ petitions filed by advocates of the Supreme Court and various High Courts challenging, inter alia, the validity of a government circular concerning appointments of High Court judges.
    1. On the question of whether the petitioners satisfied the rules of standing (Locus standi) before the Supreme Court, Bhagwati J adopted an ethical approach to interpreting Article 32, noting that the rules made by the Court prescribing the procedure for filing writ petitions in pursuance of Article 32 could not be read literally.
    2. The procedure was a ‘handmaiden of justice; and the cause of justice could ‘never be allowed to be thwarted by any procedural technicalities’:”
    3. In a confirmation of the jurisprudence enabling public interest litigation petitions to be filed in the Supreme Court and High Courts, Bhagwati J held that any member of the public could file a petition for the enforcement of rights of a person or class of persons that was unable to approach the Court for relief.
    4. This appeal to broad notions of justice stood in contrast with the Court’s reading of Articles 124(2) and 217(1).
    5. The Court accorded primacy to the opinion of the Union government in the process of judicial appointments, based on a literal interpretation of the word ‘consultation: ‘Consultation’, in the Court’s understanding, only required ‘taking into account’ and ‘giving due weight’ to the opinion of the consultees.
    6. However, when any difference of opinion arose amongst the constitutional functionaries, the final word would rest with the Union government.
    7. Any other reading of these provisions would amount to ‘bending the language of the Constitution.”
6. Over a decade later, however, the ‘bending’ of the language of Articles 124(2) and 217(2) was effectuated. In Supreme Court Advocates-on-Record Association SCAORA v Union of India 1993,which is known as the second judges case, a nine-judge bench abandoned the literal interpretation of these provisions.
  1. Verma J held that the true meaning of the provisions needed to be discerned from the broader scheme and structure of the Constitution.
  2. In this broader constitutional context, the word ‘consultation’ was meant to signify a limitation on the power of the President to appoint judges.”
  3. This case prompted a major shift of power in the process of judicial appointments, and led to the establishment of collegium (consisting of senior judges) for the appointment of Supreme Court and High Court judges.
7. The third judges case, which was understandably precedent-heavy, reinforced this interpretation of the constitutional provisions. The move towards structuralism was clearly manifested in the Supreme Court’s judgments in the second and third judges cases.
8. In SR Bommai v Union of India 1994, probably the Supreme Court’s most important judgment on federalism, the Court was tasked with determining the scope of Article 356.
  1. It interpreted Article 356 bearing in mind the scheme and essential features of the Constitution, including democracy and federalism.
  2. The basic structure doctrine played an important role in the Court’s decision, as the Court held that the President could dismiss a State government on the basis that it was likely to act contrary to the basic features of the Constitution.
  3. Having said that, it also appealed to the language of Article 356 in delineating the scope for judicial review of Presidential proclamations.
9. Indra Sawhney v Union of India 1993,better known as the ‘Mandal Commission‘ case, the Court interpreted Article 16(4) of the Constitution, dealing with reservations in public employment for backward classes of citizens.
  1. Structuralist arguments played an important role in the decision, with the Court reasoning that Article 16(4) was not an exception to the other equality clauses, but was in fact a facet of them.
  2. Both were considered part of the same scheme established by the framers of the Constitution and were therefore read homogeneously.
  3. Textualist arguments propelled the Court’s conclusion that the use of the phrase ‘backward class of citizens‘ in Article 16(4), in comparison with the narrower phrase ‘socially and educationally backward classes of citizens‘ in Article 15(4), meant that the former was intended to be a more inclusive provision than the latter.
  4. Both of these interpretive assessments were confirmed through references to the Constituent Assembly Debates.’
10. What is common between the first two phases of the interpretive story in the Supreme Court is that significant decisions involving the interpretation of the Constitution were entrusted to constitutional benches, comprising five or more judges, and were carefully (even if incorrectly) reasoned.

PHASE III-PANCHAYATI ECLECTICISM

In the third phase, the Supreme Court’s interpretive philosophy turned far more result oriented than it had ever been.
Two factors underpinned this institutional failure.
1. First, the changing structure of the Court, which at its inception began with eight judges, grew to a sanctioned strength of thirty-one judges. It began to sit in panels of two or three judges, effectively transforming it into a polyvocal group of about a dozen ‘sub-Supreme Courts:
2. Even though Article 145(3) requires all substantial questions of law involving interpretation of the Constitution to be decided by constitutional benches, this requirement was ignored in practice.
There is also a natural tendency for judges on smaller benches to be less well informed, since they have access to a limited range of perspectives from their colleagues. Larger bench decisions are more likely to represent the collective opinion of the Court and promote consensus building in decision making. The greater likelihood of dissenting opinions in larger benches encourages judges to engage in robust rights reasoning so as to present their opinion as the most plausible one emanating from the bench.
This can be best described as PANCHAYATI ECLECTICISMwith different benches adopting inconsistent interpretive approaches based on their own conception of the Court’s role, and arriving at conclusions that were often in tension with one another.
1. The imagery that panchayati eclecticism is meant to invoke is that of a group of wise men and women (or, applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine, and established interpretive methods.
In the space of a few weeks in 2013, the Supreme Court decided three important cases on electoral reform inconsistently, producing awkward constitutional jurisprudence. These cases were decided in the context of what is commonly known as the ‘criminalisation of politics: referring to the fact that a significant proportion of parliamentarians face criminal charges.”! None of these significant cases were decided by constitutional benches.
In Chief Election Commissioner v Jan Chaukidar 2004an NGO contended that since prisoners were deprived of the right to vote, they could not be considered as ‘electors’ and should automatically be disqualified from standing for elections during periods of incarceration.
1. A two-judge bench of the Supreme Court affirmed this contention.
2. One of the key reasons for this decision was that the Court considered the right to vote as a statutory endowment that is conferred (and equally, revoked) by the ordinary legislative process.
3. A structuralist reading could have produced a very different outcome (one that was, as we shall see later, inconsistent with the Court’s conception of its role).
4. After all, India’s status as an inclusive, participatory democracy forms part of the basic scheme of the Constitution, and it is questionable whether excluding a large class of people from the vote is consistent with that scheme.
The next electoral case was Lily Thomas v Union of India 2013, 119 in which a two-judge bench interpreted constitutional provisions concerning the disqualifications for membership of Parliament and the State legislatures.
1. Section 8(4) of the RPA gives sitting legislators a period of three months before disqualification operates, enabling them to appeal against their conviction.
2. This statutory provision was challenged on the basis that it contravened Articles 102(1) and 191(1), dealing with the disqualifications for membership of Parliament and the State legislatures.
3. At issue before a three-judge bench of the Supreme Court in the third electoral case!” was whether the rules governing the casting of ‘none-of-the-above’ votes, which in effect denied such votes of the benefit of secret ballot, violated the freedom of speech and expression.
4. Sathasivam CJ‘s opinion was replete with references to the structure and scheme of the Constitution, of which free and fair elections is a cornerstone.
5. He struck down the relevant rules on the basis that the right to cast a ‘none-of-the-above’ vote-which he mistakenly equated with a negative vote was an essential part of the right to expression of a voter in a parliamentary democracy, which had to be recognised and given effect in the same manner as the right to cast a regular vote.
These three decisions produced an internally inconsistent and confusing electoral jurisprudence.
1. On the one hand, the right to vote is a statutory privilege, which can be given and taken away by ordinary legislative majorities.
2. On the other hand, the right to secrecy in voting and the right to cast a negative vote are treated as fundamental rights based on the structure of the Constitution, and are immune from the ordinary political process.
3. Franchise can be denied to a large section of society (as per Jan Chaukidar), electoral disqualifications can be imposed liberally albeit uniformly (as per Lily Thomas)-but those who have the vote must be able to cast an anonymous negative vote (Peoples Union for Civil Liberties).
So, in order to fit into their version of the Court’s decision-making role, three benches of the Supreme Court relied on different interpretive approaches (in two cases, textualism and in the third, structuralism) and produced doctrinally inconsistent jurisprudence.
Two judgments delivered by two-judge benches of the Supreme Court on the rights of sexual minorities reflect similar concerns.
In Suresh Kumar Koushal v Naz Foundation 2014the Court decided an appeal against the Delhi High Court’s judgment reading down section 377 of the Indian Penal Code 1860, which criminalised voluntary ‘carnal intercourse against the order of nature:
1. The Delhi High Court’s decision rested on the claim that section 377, in the form that it was, violated Articles 14, 15 and 21 of the Constitution, because it discriminated on the ground of sexual orientation, targeted homosexuals as a class, and was contrary to constitutional morality.
2. The Supreme Court reversed the Delhi High Court on the basis that Section 377 uniformly regulated sexual conduct and did not, on its face, discriminate against sexual minorities. Same logic applicable to Bar dancer case?
3. The Supreme Court also seemed to impose a numerical de minimis threshold for the enforcement of fundamental rights through public interest litigation-observing, quite astonishingly, that only a ‘miniscule fraction of the country’s population could be classified as lesbian, gay, bisexual, and transgender (LGBT).
About four months later, the Supreme Court decided National Legal Services Authority (NALSA) v Union of India 2014.
1. The question before it was whether the right to equality required State recognition of hijras (broadly, Indian male-to-female transgender groups) and transgenders as a third gender for the purposes of public health, welfare, reservations in education and employment, etc.
2. The two opinions in the case adopted contrasting interpretive techniques to arrive at the conclusion that the Constitution mandated the recognition of a third gender.
3. Radhakrishnan J approached the issue from a textualist perspective, noting that the fundamental rights at issue used the words ‘person or ‘citizen, which were gender neutral and applied equally to transgenders?
4. He also contradicted the de minimis notion for the enforcement of fundamental rights articulated in Koushal.
5. This opinion shows that it is a mistake to conflate textualism with aliberalism. Indeed, remarkably liberal judgments may have textualist underpinnings.
6. Sikri J, on the other hand, approached the case from a dynamic, prudential perspective, arguing that the Constitution would need to stimulate changes in social attitudes by requiring the recognition of transgenders as a category separate from males and females.’ The Constitution, in his view, is a living organism that is sensitive to social realities.
Koushal and NALSA again show how panel composition in the third phase has produced awkward constitutional jurisprudence.
1. The present state of the law appears to be that although the criminal prohibition on carnal intercourse (including transgender inter-course) is consistent with the fundamental rights to life and equality, the State’s failure to recognise a third gender violates those very same rights.
2. Transgenders can putatively claim a violation of constitutional guarantees when they are denied separate public toilets, but cannot do so if they are arrested or questioned for engaging in non penile-vaginal intercourse.
The structuralist approach to interpretation continued to remain popular during this phase.
1. For instance, in 2010, a three-judge bench of the Supreme Court decided the question of whether narco-analysis, brain mapping, and polygraph tests were contrary to the right against self-incrimination under Article 20(3), which provides that ‘[n]o person accused of any offence shall be compelled to be a witness against himself.
2. One of the issues that arose before the Court was what the limits of this constitutional provision were-clearly, not every such test would involve someone who had been ‘accused of a criminal offence’.
3. Balakrishnan CJ highlighted the importance of the interrelationship between the right against self-incrimination under Article 20(3) and the right to life under Article 21, affirming that even in cases where a person was not accused of an offence, the guarantees of substantive due process under Article 21 (following Maneka Gandhi) would still need to be complied with.
4. The right against self-incrimination was also a component of personal liberty under Article 21, and would come into play when an individual was liable to face non-penal consequences that lay outside the scope of Article 20(3).
5. Based on this structuralist reading of the constitutional provisions, the Court held that involuntary administration of narco-analysis, brain mapping, and polygraph tests, whether in the context of a criminal investigation or otherwise, would be unconstitutional.
In Pradeep Chaudhary v Union of India 2009, the Court was asked to interpret Article 3, which requires the President to consult relevant State legislatures before a bill to alter the boundaries of a State can be introduced in Parliament.
1. There were two options available to the Court.
2. It could either have construed such consultation in a thin sense, requiring the State legislature to be given a formal chance to express its views, or done so in a thick sense, requiring the views expressed by the State legislature to be taken into account, in one way or another, by Parliament.
3. The Court opted for the former, relying upon a textualist reading of Article 3.
4. Sinha J held that consultation in this case would not mean concurrence, and that Parliament would in no way be bound by the views of the State legislature.’
5. The Court failed to justify the reason for which ‘consultation’ would not have the much thicker meaning attributed to it in the context of judicial appointments.
6. In fact, ascribing a thicker meaning based on a structuralist interpretation would have better accorded with the overall scheme of the Constitution, of which federalism is an essential component.
In IR Coelho v State of Tamil Nadu 1999 the Court followed on from the structuralist interpretation of fundamental rights in Kesavananda, Minerva Mills, and other cases, holding that the insertion of statutes into the Ninth Schedule to the Constitution (which is meant to immunise legislation from fundamental rights challenges) would nonetheless be subjected to the ‘basic structure’ doctrine.
Following the Congress Party-led United Progressive Alliance’s victory in the national elections of 2004, the President (on the advice of the Union government) removed four State governors from office, who under Article 156(1) of the Constitution held office ‘during the pleasure of the President’.
A five-judge bench of the Supreme Court was tasked with deciding whether, and in what circumstances, this was permissible. The Court cited Constituent Assembly Debates to arrive at two conclusions:
1. First, that the framers adopted the ‘doctrine of pleasure’ route (rather than impeachment or inquiry) for the removal of Governors, and
2. Second, that it was assumed that withdrawal of pleasure resulting in removal of the Governor would be on valid grounds (though the framers found no need to enumerate them).
3. This historical approach was supplemented by an intra-textualist argument, since the Court discerned what the ‘pleasure of the President’ meant under Article 156, by referring both to offices that are held during pleasure, and offices that are not held during pleasure, in different parts of the Constitution.
Overall, the features of the Supreme Court’s interpretive judgments in the third phase are captured by the expression panchayati eclecticism: small benches deciding ‘big’ cases, a lack of emphasis on reason giving, jurisprudentially inconsistent or awkward decisions, and a variety of interpretive techniques-both within and amongst the Court’s judgments-that were often instrumental to the Court’s self-conception of its role.
Some of these features were also conspicuous in an important judgment delivered by the Supreme Court at the time that this chapter was being finalised.
The Court-relying on its self-conception as a sentinel of democracy-invoked the basic structure doctrine to strike down a constitutional amendment seeking to revise the judicial appointments process.

CONCLUSION

Within most judgments of the Supreme Court, there has not been one interpretive technique, but many, and judges have often relied on the strategy of claiming that all interpretive routes lead to the same destination.
Tracking the worldwide move towards the judicialisation of politics, the Supreme Court’s shift away from textualism has been accompanied by an increase in judicial power (recall the second and third judge cases) or an expansion of the scope of judicial review (think of Kesavananda, Maneka Gandhi, and Bommai).
Yet, the Supreme Court’s interpretive outlook has been distinctive in many ways, particularly compared to that of the US Supreme Court.
Judges have not been tied down to particular philosophies, and have manifested the flexibility to reconsider their interpretive approaches.
1. Khanna J’s move from textualism (in Kesavananda) to ethicalism (in ADM Jabalpur)and
2. Chandrachud J’s move from textualism (in Kesavananda) to structuralism (in Minerva Mills) offer good examples.
3. One of the reasons for this flexibility may be that constitutional interpretation has generally remained a subconscious (and sometimes, even instrumental) enterprise in the Supreme Court.
Further, unlike in the United States, where the move away from textualism was justified by the difficulty of formal amendment, in India, the ease of formal amendment prompted the shift towards interpretive approaches that profess fidelity to the structure of the Constitution.
Finally, the Supreme Court’s unique system of bench composition combined with differing conceptions of its own role have produced an idiosyncratic, result-centric style of constitutional interpretation in recent years-with many small, sub-Supreme Courts adopting inconsistent approaches that produce incoherent jurisprudence.

CONSTITUTIONAL INTERPRETATION CASE LAWS

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746
1. This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
M. Nagraj v. Union of India, AIR 2007 SC 71
1. Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour.
2. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted.
3. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.”
SCAORA v. UOI, (1993) 4 SCC 441
1. “The Framers of the Constitution planted in India a living tree capable of growthand expansion within its natural limits. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Constitutional law cannot be static if it is to meet the needs of men.
2. New situations continually arise. Changes in conditions may require a new-look at the existing legal concepts.
3. It is not enough merely to interpret the constitutional text. It must be interpreted so as to advance the policy and purpose underlying its provisions.
4. A purposeful meaning, which may have become necessary by passage of time and process of experience, has to be given. The Courts must face the facts and meet the needs and aspirations of the times.
5. The case before us must be considered in the light of our entire experience and not merely in that of what was said by the Framers of the Constitution. While deciding the questions posed before us we must consider what is the Judiciary today and not what it was fifty years back.
6. The Constitution has not only to be read in the light of contemporary circumstances and values, it has to be read in such a way that the circumstances and values of the present generation are given expression in its provisions. An eminent jurist observed that “Constitutional interpretation is as much a process of creation as one of discovery.”

Project discussion 11/09/2018

Structure-India before it secular-nature and then practice
Problem with Alternatives (if Hinduism had not been recognised)—
1. Huge backlash of abolishing Hinduism
2. Not the place of state to dictate religious beliefs.
Other religions don’t have the same vices as in Hinduism.
Why only abolish Hinduism? Why not all religion? Will Dalit and Pasmanda will say same thing about their religion?

Link between last and first chapter.

CONSTITUTION PARTS II, III and IV

ARTICLE 13-LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS

ARTICLE 13-Laws inconsistent with or in derogation of the fundamental rights.
1. All ‘laws in force’ in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
2. The State shall not make any ‘law’ which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires,—
  1. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
  2. “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made under article 368
This article has to be read with Article 372
1. ARTICLE 372.
  1. Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
  2. Explanation I.—The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Article 32 and 226-Right to move SC and HC if any law violated FR.

Burden of proving unconstitutionality-lies on the person

PRESUMPTION OF CONSTITUTIONALITY
1. Shri Ram Krishna Dalmia v Justice SR Tendulkar AIR 1958 SC 538 (5 Judge)
  1. That there is always a presumption in favour of the constitutionality of an enactment and
  2. The burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
  3. That it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that the law is a permissible limitation.
  4. That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.
  5. The presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for the infringement of a right.
2. The reason is Doctrine of deference to the wisdom of legislature that State shall not make laws violating FR.
3. The Court will try its level best to uphold constitutional validity.
4. Is predisposition a problem?
  1. Yes. Predisposition places a very heavy burden on the other party.
  2. For example-Question of Death Penalty. Both sides have arguments on deterrent effect. In theory that can be but in practice its very impossible to show whether it has or not. In such a case-presumption of validity matters a lot.
  3. Bachan Singh v State of Punjab 1980
    1. (MAJORITY) To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose.
    2. (MINORITY)-It would be a wise rule to adopt to presume the constitutionality of a statute unless it is shown to be invalid. But even here it is necessary to point out that this rule is not a rigid inexorable rule applicable at all times and in all situations. There may conceivably be cases where having regard to the nature and character of the legislation, the importance of the right affected and the gravity the injury caused by it and the moral and social issues involved in the determination, the court may refuse to proceed on the basis of presumption of constitutionality and demand from the State justification of the legislation with a view to establishing that it is not arbitrary or discriminatory. There are times when commitment to the values of the Constitution and performance of the constitutional role as guardian of fundamental rights demands dismissal of the usual judicial deference to legislative judgment. The death penalty, of which the constitutionality is assailed in the present writ petitions, is a fundamental issue to which ordinary standards of judicial review are inappropriate. The question here is one of the most fundamental which has arisen under the Constitution, namely, whether the State is entitled to take the life of a citizen under cover of judicial authority. The burden must lie on the State to prove that the death penalty provided under section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure is not arbitrary and unreasonable and serves a legitimate penological purpose’
  4. In Maneka Gandhi,
    1. That the requirement under Article 21 is not just ‘Procedure established by law’ but that the ‘Procedure must be just and fair’.
    2. The state should be accountable for exercise of its power.
    3. The moment there is any kind of doubt about the constitutionality of any law, that doubt has to be in favour of constitutionality.
5. PRESUMPTION IN CASE OF PRE-CONSTITUTIONAL LAWS
  1. Madhu Limaye v SDM Monghyr 1970 (7 Judge)
    1. Pre-constitutional laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore,, void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Art. 13(1) read with any of the guaranteed free.
  2. Suresh Kumar Koushal v Naz Foundation 2014
    1. Every legislation enacted by Legislature carries with it a presumption of constitutionality.
    2. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment.
    3. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law.
    4. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to be constitutional.
  3. Navtej Johar v UOI 2018 (5 Judge)
    1. (Nariman J) The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations.
    2. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain.
    3. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.
6. Does presumption of constitutionality POC applies throughout or just initially?
  1. In some case, court said that POC applies only at the starting stage.
  2. Once petitioners are able to prove violation of FR, then burden shifts on state to prove constitutionality.
  3. For example-if one is able to prove that sedition has violated free speech, then state has to prove the constitutionality nonetheless justified.
  4. Saghir Ahmad v UP AIR 1954 SC 728–
  5. Khyerbari Tea Co. v Assam AIR 1964 SC 925–
  6. UOI v Elphinstone AIR 2001 SC 724
    1. There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will … The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved.
DOCTRINE OF “READING DOWN” OF A STATUTE
1. DTC vs DTC Mazdoor Congress, AIR 1991 SC 101
  1. The settled rule judicially evolved in matters of constitutional adjudication is that in order to sustain the constitutionality of legislation, the words of a statute may be qualified, its operation limited and conditions, limitations and obligations may be implied or read into the statute in order to make it conform to constitutional requirements.
  2. The underlying rationale, according to the learned Attorney General, of this rule of interpretation, or the doctrine of reading down of a statuteis that when a legislature, whose powers are not unlimited, enacts a statute, it is aware of its limitations, and in the absence of express intention or clear language to the contrary, it must be presumed to have implied into the statute the requisite limitations and conditions to immunise it from the virus of unconstitutionality. From what the learned Attorney General submitted and what appears to be the correct that every legislature intends to act within its powers. Therefore, in a limited Government, the legislature attempts to function within its limited powers. It would not, therefore, be expected to have intended to transgress its limits.
2. If there are two interpretations available, that interpretation will be taken that upholds its constitutionality. But upto what extent?
3. Sedition law-whether violation of 19(1)A?
  1. IPC 124A–Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
  2. Does it fit in reasonable restrictions mentioned 19(1)(2)-Public Order?
  3. On the face of it, the wordings of the provisions are much broader that public order. Court said that the wordings can be read down in order to bring it in conformity with Constitution.
4. Kedar Nath Singh v State of Bihar AIR 1962 SC 955
  1. IPC 124A-Sedition law-whether violation of 19(1)A?
  2. “Any law which is enacted in the interest of public order may be saved from the vices of constitutional invalidity. If on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order by the use of words written or spoken which merely create disaffection or feeling of enmity against the government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Art.19(1)(a) read with clause 2.
  3. It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution and other interpretation would render them unconstitutional, the court would lean in favour of the former construction.
  4. It is only when the words, written or spoken etc. which have the pernicious tendency or intention to creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order”
5. 42^nd AMENDMENT-It amended Article 31C. Notwithstanding Article 13, the state can make any law giving effect to certain directive principles.
6. This was questioned in-
  1. Minerva Mills v UOI AIR 1980 SC 1789
    1. Court said that DPSP are not above FR.
    2. Attorney General said that court should read down Article 31C rather than striking it down.
    3. Then court said that only those laws giving effect to part IV (DPSP), that violated basic structure are unconstitutional.
    4. Article 14 and 19 are not part of basic structure?
    5. “The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31C should be read down so as to save it from the challenge of unconstitutionality. It was urged that it would be legitimate to read into that Article the intendment that only such laws would be immunised from the challenge under Articles 14 and 19 as do not damage or destroy the basic structure of the Constitution. The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well-known.
    6. But we find it impossible to accept the contention of the learned Counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one’s liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment.
    7. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. …. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.”
    8. We should have mentioned that a similar argument was advanced in regard to the amendment effected by Section 56 of the 42nd Amendment to Article 368, by the addition of Clauses (4) and (5) therein. It was urged that we should so construe the word “amendment” in Clause (4) and the word “amend” in Clause (5) as to comprehend only such amendments as do not destroy the basic structure of the Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose of Clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any “limitation whatever”. Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.
7. In KESHAVANANDA BHARTI case court said that amending power of parliament does not extend to altering Basic Structure.
8. So Parliament through 42^nd amendment added clauses 4 and 5 to Article 368.
9. This was challenged in MINERVA MILLS case–
  1. Court upheld the challenge.
  2. State said that amendment itself contain the restriction of basic structure. Hence the constitutionality of clauses 4 and 5 was upheld.
  3. We should have mentioned that a similar argument was advanced in regard to the amendment effected by Section 56 of the 42nd Amendment to Article 368, by the addition of Clauses (4) and (5) therein. It was urged that we should so construe the word “amendment” in Clause (4) and the word “amend” in Clause (5) as to comprehend only such amendments as do not destroy the basic structure of the Constitution.
  4. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose of Clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any “limitation whatever”. Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.
  5. Once clear intention has been expressed by parliament then court cannot put words to give diametrically opposite meaning to that provision.
10. Article 66A of IT ACT–Punishment for sending offensive messages through communication service etc. Any person who sends, by means of a computer resource or a communication device,—
  1. (a) any information that is grossly offensive or has menacing character; or
  2. (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
  3. (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
  4. Explanation. For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
  5. Shreya Singhal v UOI AIR 2015 SC 1523
    1. Article 66A–Punishment for sending offensive messages through communication service etc.
    2. These grounds are much broader then the reasonable restrictions mentioned in Article 19.
    3. “However the learned Additional Solicitor General asked us to read into Section 66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision.
    4. We are afraid that such an exercise is not possible for the simple reason that when the legislature intended to do so, it provided for some of the subject matters contained in Article 19(2) in Section 69A (Blocking of Websites).
    5. We would be doing complete violence to the language of Section 66A if we were to read into it something that was never intended to be read into it.
    6. What the learned Additional Solicitor General is asking us to do is not to read down Section 66A. He is asking for a wholesale substitution of the provision which is obviously not possible.
What will happen a part of law is within the purview of PART 3 and a part is outside the purview of part 3?
1. Not if the operative part is unconstitutional.
2. DOCTRINE OF SEVERABILITY.
  1. RMD Chamarbaugwalla v UOI AIR 1957 SC 628 (5 Judge Bench)

Facts–

Constitutionality of Section 2(d) Prize Competition Act 1955.
1. Prize Competition-“Any competition (whether called a cross-word prize competition, a missing word prize competition, a picture prize competition or by any other name) in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation of letters, words or figures.”

Held–

When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allowed to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety?
1. The answer to this question must depend on whether what is valid could be separated from what is invalid and that is a question which has to be decided by the court on a consideration of the provisions of the Act.
2. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor.
3. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.
4. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
5. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable.
6. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
7. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.”
8. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections ….it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.”
9. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation.”
10. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it.
Difference between reading down and severability–
1. In severability a portion is considered unconstitutional.
2. In Navtej Johar-some portions of judgement have struck down that portion that criminalises the consensual intercourse between adults. In some portions it reads down. But in both cases, the effect is same.
Can The same statute be constitutional for some people and not for other?
1. If a statute is stuck down on the basis of 19(1)(a), will it still apply to non-citizens?
2. S.66A was stuck down. Does it continue to apply to non-citizens?
  1. Yes. See Article 13(2).
3. State of Gujarat v Shri Ambika Mills 1974 4 SCC 656
  1. Petitioner was a corporation which challenged some Bombay Act under Article 19(1)(f).
  2. Court said that even then it would continue to apply on petitioner as petitioner is a corporation and not a citizen.
  3. Struck down does not mean, removal form statute book (metaphorical) but it becomes unenforceable to the extent it violates FR. IMP.
Who is the Duty Holder and Rights bearer in Part III?
1. Duty holder is the State and Rights bearer are both citizen and state. See Article 15(1) and 15(2).
2. State also has a positive obligation in some places-
  1. For example-Article 21.
3. But does positive obligations of State under Article 21 applies to Rohingyas as well?
  1. In Human Rights, 3 kinds of obligation on duty bearer-
    1. Respect the rights
    2. Protect that other people don’t deny
    3. Fulfill-take positive steps to ensure that this right is meaningful.
Does the word ‘Void’ in 13(1) and 13(2) have the same meaning?
1. Void in 13(1) begins from enactment of constitution while void in 13(2) is void-ab-initio.
2. Some one is prosecuted under 377 in 1949 and constitution comes into being in 1950. He challenges it. Should the prosecution continue?
  1. The prosecution itself is an executive authority and it cannot continue post the enactment of constitution.
  2. Keshava Madhava Menon v State of Bombay AIR 1951 SC 128
    1. Facts-KMM was prosecuted in 1949 under a law that became unconstitutional after coming into force of constitution.
    2. Article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
    3. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of Fundamental rights.
If a pre-constitutional law was valid upto 1950 and void after 26 Jan 1950 but through constitutional amendment it is made valid? Does this law gets revived?
1. Bikaji Narayan Dhakras v MP
  1. Facts-There is an amendment to MV act in 1947 allowing the state to create a Monopoly in road transport business which was violation of 19(1)(g). It became void after the coming into force of the Indian Constitution.
  2. But in 1951 reasonable restrictions and monopoly provisions were inserted in Article 19 through a constitutional amendment. Does MV Act gets revived or became void forever?
  3. Held–the impugned law became valid as it was ECLIPSED, for the time being by the FR. The effect of constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish infirmity.
    1. It did not become void-ab-initio.
    2. The law does not get stuck-off of the statute book. It just gets eclipsed for the time being.
2. But can the same logic apply to post constitutional laws?
  1. No because they are void from the beginning.
  2. Article 31-(as it stood originally)
  3. Bela Banerjee v State of WB AIR 1954 SC 170
    1. Her property was acquired by state and she alleged inadequate compensation.
    2. Court said that compensation has to be adequate.
    3. Article 31 was then amended-no law can be called in question in any court on the ground of inadequacy of compensation.
  4. Deep Chand v UP AIR 1959 SC 648
  5. MPV Sundararamaier v AP AIR 1958 SC 468 (5J)
    1. Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operateproprio vigorewhen the Constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto.
    2. The fact that it is invalid as to a part has not the effect of obliterating it out of the statute book, because it is valid as to a part and has to remain in the statute book for being enforced as to that part.
  6. Mahendra Lal Jaini v UP AIR 1963 SC 1019 (5J)
    1. In both these cases petitioners alleged inadequate compensation and these laws came after 1950 but before 4^th constitutional amendment hence violated original Article 31. Question was whether 4^th amendment removed the infirmity.
    2. Court said that there was no question of reviving the law as they were a nullity since the moment they were enacted.
    3. State does not have the power to make such laws in the first place hence doctrine of eclipse will not apply to post constitutional laws. Otherwise it would also amount to rewarding legislature it its wrong.
  7. If a law becomes void for violating any FR, it remains valid for non-citizens.
  8. In AMBIKA MILLS-A law will remain unenforceable for citizens but not for non-citizens.
  9. If we read MPV Sundararamaier and Ambika Mills together, it comes out that state will not have to enact a new law and the amendment is not suffice.
  10. THE LAW AS IT STANDS TODAY–
    1. Doctrine of Eclipse applies to Post-Constitutional laws as well.
    2. Because according to Per-Incuriam Principle, if a later same judge bench court fails to notice the previous decision on same issue, than position held by previous bench is valid and continues to apply.
    3. So MPV Sundararamaier is the law and not Deep Chand and Mahendra Lal despite that they came later.
  11. As a matter of Principle-It should become void ab initio and there is no question of revival because state should not be rewarded for making unconstitutional laws and as a punishment and deterrence for future legislature, it should reenact the law and only an amendment constitutional or otherwise will not suffice.
PROSPECTIVE OVERRULING? DOCTRINE OF PRUDENCE
1. Navtej Johar (Malhotra J)
  1. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the constitution.
  2. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
2. IC Golaknath v State of Punjab AIR 1967 SC 1642
  1. What then is the effect of our conclusion on the instant case?
  2. Having regard to the history of the amendments their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for.
  3. We, therefore, declare that our decision will not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights.
3. Is Doctrine Of Prudence goes well in such cases?

CAN PEOPLE VOLUNTARILY WAIVE THEIR FR?

For example-when u enter the university, u sign a contract that if your credentials are false, u will be debarred? Have u waived your right to sue by signing that contract?
Basheshar Nath v Commissioner of Income Tax AIR 1959 SC 149
1. Facts-Allegation that BN has violated Tax Act. The act also provides that accused can enter into settlement with authorities and he enters into such agreement and pays the penalty for some time. In the meanwhile that provision of IT Act is stuck down in some case. Now BN refused to pay the penalty.
2. Issue-Whether by entering into settlement, he has waived of his Fundamental Right?

Held–

SR Das and Kapur JJ (Concurring)–It must be noted, first and foremost that this Article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e.g., Article 19, do. The obligation thus imposed on the State, no doubt, inures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy.

Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person?
In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so?
If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that “true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing.
It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.
Bhagwati (Concurring)–The preamble to our Constitution, Article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America, no distinction can be drawn here, as has been attempted in the USA, between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy.
It will be also seen that under Article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution.
No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
It is absolutely clear on a perusal of Article 13(2) of the Constitution that it is a constitutional mandate to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by Article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.
Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. … unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our constitution.
Subba Rao (Concurring)–Part III is therefore enacted for the benefit of all the citizens of India, in an attempt to preserve to them their fundamental rights against infringement by the institutions created by the Constitution; for, without that safeguard, the objects adumbrated in the Constitution could not be achieved. For the same purpose, the said chapter imposes a limitation on the power of the State to make laws in violation of those rights. The entire part, in my view, has been introduced in public interest, and it is not proper that the fundamental rights created under the various Articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit.
When one realizes the unequal positions occupied by the State and the private citizen, particularly in India where illiteracy is rampant, it is easy to visualize that in a conflict between the State and a citizen, the latter may, by fear of force or hope of preferment, give up his right. It is said that in such a case coercion or influence can be established in a Court of law, but in practice it will be well nigh impossible to do so.
The large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State organizations and institutions, nor can they meet them on equal terms.
In such circumstances, it is the duty of this Court to protect their rights against themselves. I have, therefore, no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore cannot be waived.
By express provisions of the Constitution, the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not, therefore, expected to enforce any right contrary to the constitutional prohibition on the ground that the party waived his fundamental right. If this prohibition is borne in mind, no occasion can arise when the State would be prejudiced. The prejudice, if any, to the State would be caused not by the non-application of the doctrine of waiver but by its own action contrary to the Constitutional prohibition imposed on it.
SK Das (Dissenting)–The crucial question is the nature of the right given:
1. Is it for the benefit of individuals or
2. Is it for the general public ? That, in my opinion, is the true test.
Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different.
1. One is that ours is a nascent democracy and, therefore, the doctrine of waiver should not apply. With respect, I am unable to concur in this view.
  1. I do not think that we shall be advancing the cause of democracy by converting a fundamental right into a fetter or using it as a means for getting out of an agreement freely entered into by the parties.
  2. I appreciate that waiver is not to be light-heartedly applied, and I agree that it must be applied with the fullest rigour of all necessary safeguards and cautions.
  3. What I seriously object to is a statement in the abstract and in absolute terms that in no circumstances can a right given by any of the provisions in Part III of the Constitution be waived.
2. Another point taken is that the provisions in Part III embody what are called ‘natural rights’ and such rights have been retained by the people and can never be interfered with. I am unable to acquiesce in this.
  1. The expression ‘natural rights’ is in itself somewhat vague. Sometimes, rights have been divided into ‘natural rights’ and ‘civil rights’, and ‘natural rights’ have been stated to be those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights are those which arise from the needs of civil as distinguished from barbaric communities.
  2. I am unable, however, to agree that any such distinction is apparent from the provisions in Part III of our Constitution: all the rights referred to therein appear to be created by the Constitution.
The true position as I conceive it is this :where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals.
Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180
1. Facts-In Bombay HC, pavement dwellers had agreed that they will not exercise their FR.

Held–

FR are undoubtedly conferred by the constitution upon individuals which have to be assured and enforced by them, if those rights are violated. But, the high purpose which the constitution seeks to achieve by conferment of FR is not only to benefit individuals but to secure the larger interests of the community.
1. No individual can barter away the freedoms conferred upon him by the constitution.
2. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or nay subsequent proceedings.
3. Such a concession if enforced would defeat the purpose of the constitution. Were the argument of estoppel valid, an all powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory immediate benefits.
So even if an individual waives his right, court cannot rely on that waiver.
In Puttuswamy the court did not go into that question but said that essence of right to privacy is that it is upon an individual whether or not to protect his privacy.
Right to privacy as it currently stands, only apply against State.
In AK GOPALAN, court said that you don’t need Article 13 to enjoin state not to violate FR as that is implicit in every FR. Article 13 suggest departure from previous British Parliamentary Sovereignty. IMP

WHAT IS ‘LAW’ AND ‘LAW IN FORCE’ IN ARTICLE 13(3)?

Can State take away FR without making any law?
1. Article 13(2) is there by way of abundant caution. The state cannot deny FR to any person by any action.
Does 13(3)a and 13(3)b applies to 13(1) and 13(2)? Can 13(3)a ( which defines ‘law’) be applied to 13(1) (law in force)?
1. Sant Ram v Labh Singh AIR 1965 SC 314
  1. The definition of the phrase “laws in force” is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. in other words, laws, which were not in operation, though on the statute book, were included in the phrase “laws in force”.
  2. But the second definition does not in any way restrict the ambit of the word “law” in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition.
  3. There are two compelling reasons why “custom and usage” (defined under ‘Laws’) having in the territory of India the force of the law must be held to be contemplated by the expression “all laws in force”.
    1. Firstly, to hold otherwise, would restrict the operation of the first clause in such ways that none of the things mentioned in the, first definition would be affected by the fundamental rights.
    2. Secondly, it is to be seen that the second clause speaks of “laws” made by the State and custom or usage is not made by the State. If the first definition governs only clause (2) then the words “custom or usage”, would apply neither to clause (1) nor to clause (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of The Article.
Whether personal law is law within the meaning of 13(3)(a)?
1. Personal laws includes, religious texts, customs, usages, statutes etc
2. Assan Rawther v Ammu Umma 1971
  1. Krishna Iyer J–Before parting with this topic. I must refer to two decisions cited at the bar by counsel for the appellant in support of his contention that Section 129 of the Act was altogether immune to any invasion by Articles 14 or 15 (1) and even 13. … In the Bombay case, the learned Judges went to the extent of laying down that personal law is not included in the expression “laws in force” used in Article 13 (1).
  2. With great respect, I demur to the proposition and to the reasoning adopted in reaching this result. Personal law so-called is law by virtue of the sanction of the sovereign behind it and is, for that very reason, enforceable through court. Not Manu nor Muhammed but the monarch for the time makes ‘personal law’ enforceable.
  3. Article 13 (1) gives an inclusive and not exhaustive definition. And I respectfully venture the opinion that Hindu and Muslim laws are applied in courts because of old regulations and Acts charging the courts with the duty to administer the personal laws and not because the ancient lawgivers obligate the courts to enforce the Text.
3. Article 44 of the Constitution-UCC
4. Article 371A–
5. 6^th Schedule-
6. The category of personal was invented in colonial period.
7. Before Shariat Act 1937, many Muslim communities were governed by Hindu laws. Same was true with Hindu law that went under Brahminisation.
8. We generally ignore indigenous tribal communities when we go by religious personal laws. Article 371 and 6^th schedule.
9. With UCC, Article 44 says that state shall endeavour to secure UCC.
10. Technically we have UCC for most cases expect family matters.
11. Reasonings for UCC-
  1. SC-for national integration
  2. Personal laws are gender discriminatory
12. Reasoning against UCC
  1. Plurality is a better guarantee for national integration
  2. That there is an inherent value to plurality that no system has plurality over truth.
  3. Gender justice can happen without uniformity as well-Law commission report.
13. Middle Ground Models-Have a UCC but optional. Its on the person to choose whether or not to adhere to UCC. Ambedkar’s view.
14. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84

Facts–

The validity of the Bombay Prevention of Hindu Bigamous Marriages Act, XXV of 1946, has been challenged before us principally on two grounds.
1. It is first contended that the personal laws are subject to Part III of the Constitution of India and as such they would be void to the extent to which their provisions are inconsistent with the fundamental rights guaranteed by Part III.
2. It is then argued that in so far as both these personal laws allow polygamy but not polyandry, they discriminate against women only on the ground of sex. If that is so, the provisions of the personal law permitting polygamy offend against the provisions contained in Article 16(1) and as such are void to that extent under Article 13(1).
3. In other words, after the commencement of the Constitution bigamous marriages amongst the Hindus as well as the Muslims became void and the Hindus and Muslims who entered into such bigamous marriages became liable to be punished under Section 494, Penal Code; and yet, the impugned Act specifically provides for the punishment of the Hindus alone; that is how it discriminates against the Hindus solely on the ground of religion.
4. The grievance is that the impugned Act should have provided for the punishment both against Hindus and Muslims who would contract bigamous marriages. In so far as these stringent provisions are intended to be applied only against the Hindus, they constitute discrimination against them only on the ground of religion.
5. The grievance is that the Hindus have not been treated in the game manner in which the Parsis or Christians are dealt with under the Indian Penal Code.

Issue–

Whether Personal law included in expression “laws in force” in Article 13(1)?
1. Whether Bombay Prevention of Hindu Bigamous Marriages Act, 1946, contravenes the FRs guaranteed under Articles 14, 15 and 25 of the Constitution of India?
2. Whether the personal laws applicable to the Hindus and Muslims are laws in force within the meaning of Article 13(1) of the Constitution?
  1. Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of this Constitution, in go far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.
3. Whether polygamy would be bad as contravening Article 15(1) of the Constitution?
  1. It is urged that polygamy discriminates against women only on the ground of sex?
4. By the operation of Article 15(1), polygamy across the board has become unconstitutional. Then how can you pick out only Hindus for punishment. How can you retain polygamy amongst Muslim?

Held-

Personal laws are derived from religious scriptures.
1. Customs and usages are deviations from personal laws.
2. When u have personal law, personal law does not include custom and usage.
3. In GOI Act 1932, customs and personal laws were used simultaneously but Constituent Assembly didn’t despite being cognizant of that fact.
4. Entry 5 of 7^th Schedule-
5. Article 44-If they had include personal laws in Article 13, then there was no need for UCC.
6. All this suggest that constitution makers wanted the power to interfere with personal laws with themselves.
7. If personal laws were law within the meaning of 13, then many things including untouchability will ipso-facto become void and there was no need to specifically mention them in some provision such as-Article 17-Article 25(2)(b)-Article 44-
  1. Rebuttal-Article 17 is there as an abundant caution.
8. Article 372-continues the operation of pre-constitutional laws until altered, repealed or amended. And if president want to bring some pre-constitutional law within the ambit of constitution, president may do so.
9. Only that part of personal law is not included in Article 13 which is not codified by legislature and which is not custom and usages.
10. What the judgement does not say is why personal law is above fundament Rights? Who has authorised personal law.
11. Justice Gajendragadkar–the Constituent Assembly in defining “law” in Art. 13 have expressly and advisedly used only the expression “custom or usage” and have omitted personal law. This, in our opinion, is a very clear pointer to the intention of theConstitution-making body to exclude personal law from the purview of Art.13.
12. There are other pointers as well-
  1. Article 17 abolishes untouchability and forbids its practice in any form. Article 25(2)(b) enables the State to make laws for the purpose of throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Now, if Hindu personal law became void by reason of Art.13 and by reason of any of its provisions contravening any fundamental right, then it was unnecessary specifically to provide in Art. 17 and Art. 25(2)(b) for certain aspects of Hindu personal law.
  2. Personal law is not included in the expression “laws in force” used in Article 13(1) of the Constitution of India. This expression refers to what may compendiously be described as statutory laws.
  3. It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India.
13. Therefore, there can be no doubt that both the personal laws cannot be said to have been passed or made by a Legislature or other competent authority and do not fall within the purview of the expression “laws in force.”
14. The argument is that the personal laws must be deemed to be included in the expression “laws in force” on the ground that whatever is included in the word ‘laws” in Article 13 (3)(a) must automatically be held to be included in the expression “laws in force” in Article 13(3)(b).
  1. I feel considerable difficulty in accepting this argument.
  2. If custom or usage having the force of law was really included in the expression “laws in force,” I am unable to see why it was necessary to provide for the abolition of untouchability expressly and specifically by Article 17.
  3. Even if the personal laws are held to fall within Article 13 (1), the material provisions of these laws permitting polygamy do not offend against Article 15(1) and are therefore not void.
  4. Because they cannot be said to have discriminated against women only on the ground of sex because contemporary social conditions may have justified the rule as to polygamy. Polygamy is justified, if at all, on social, economic and religious grounds and hardly ever on grounds of sex.
15. Hindu marriage is a sacrament and not a contract and the sentimental love and devotion of the Hindu wife for her husband is well known.
16. Legislature may well have thought that it would be futile to make the offence of Hindu bigamy punishable at the instance of the Hindu wife because Hindu wives may not come forward with any complaint at all.
17. If the Legislature acting on these considerations wanted to provide for a special procedure in dealing with bigamous marriages amongst the Hindus it cannot be said that the Legislature was discriminating against the Hindus only on the ground of religion.
18. Besides, even from the strictly orthodox point of view bigamy was never a matter of obligation; it was permissive and permissive under certain conditions and for a certain object if the principal object of permitting polygamy was to attempt to obtain a son, the same object could well of served by adoption. Therefore, in my opinion, there is no substance in the argument that by prohibiting bigamy the State Legislature has infringed upon Hindu religion or its practice.
19. Whether it was expedient to make this Act applicable to the Muslims as well as to the Hindus would be a matter for the Legislature to consider.
20. It is now well settled that the equality before the law which is guaranteed by Article 14 is not offended by the impugned Act if the classification which the Act makes is based on reasonable and rational considerations.
21. It is not obligatory for the State Legislature always and in every case to provide for social welfare and reform by one step. So long as the State Legislature in taking gradual steps for social welfare and reform does not introduce distinctions or classifications which are unreasonable, irrational or oppressive, it cannot be said that the equality before law is offended.
22. Besides, amongst the Muslims divorce has always been permissible and marriage amongst them is a matter of contract. If the State Legislature acting on such considerations decided to enforce this reform in the first instance amongst the Hindus, it would be impossible in my opinion to hold that in confining the impugned Act to Hindus as defined by the Act it has violated the equality before law as guaranteed by Article 14.
What remains out of the purview of S.13?
1. Uncodified personal which is not modified by custom and usages.
2. Narasu has not been overruled.
Krishna Singh v Mathura Ahir, AIR 1980 SC 707
1. HC–The strict rule enjoined by the Smriti writers as a result of which Shudras were considered to be incapable of entering the order of yatior sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the constitution.
2. SC–In our opinion, the learned failed to appreciate that Part III of the constitution does not touch upon the personal laws of the parties. In applying the personal laws of parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu law ie Smritis and commentaries referred to as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.
Daniel Latifi v UOI AIR 2001

Facts–

The Muslim Women Protection of Rights on Divorce Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum.
1. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives.
2. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973.
3. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution.

Held–

The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality.
1. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period.
2. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11).
3. This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.
John Vallamattom v UOI AIR 2003 SC 2902

Facts–

S.118 of Indian Succession Act prohibited death bed bequest if a Christian man having niece or nephew or nearer relatives and can make a will leaving his property for religious or charitable purpose.

Held–

Article 14 of the Constitution … guarantees equality before the law or the equal protection of the laws within the territory of India. The restriction imposed by reason of a statute, however, can be upheld in the event it be held that the person to whom the same applies forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved. The underlying principle contained in Section 118 of the Act indisputably was to prevent persons from making ill considered death-bed bequest under religious influence.
1. Charitable purpose includes relief to poor, education, medical relief, advancement of objects of public utility, etc. As the aforesaid charitable purposes are philanthropic and since a person’s freedom to dispose of property for such purposes has nothing to do with religious influence, the impugned provision treating bequests for both religious and charitable purposes is discriminatory and violative of Article 14 of the Constitution.
C Masilamani Mudaliar v Idol of Sri Swaminath Thirukoil AIR 1996 SC 1697
1. A person dies leaving life estate in his wife. Another person conducted puja there. The wife alienates the property.
2. Court has to look whether a woman who has been willed a life estate in a property become full owner after the coming into force of S.14 of Hindu Succession Act.
3. It has impliedly overruled Narasu Appa Mali
4. The personal laws conferring inferior status on women is anathema to equality.
5. Personal laws are derived not from the constitution but from the religious scriptures. The laws thus derived must be consistent with the constitution lest they become void under Article 13 if they violated fundamental rights.”-Obiter Dicta
Ahmedabad Women Action group v UOI AIR 1997 SC 3614
1. A whole bunch of codified and uncodified laws were challenged.
2. Court said that if we allow such challenges to be accepted, then it amounts to creating a UCC which is the domain of Legislature and not judiciary.
3. This judgement cites Narasu Appa Mali and Mathura Ahir, to support the contention that personal laws are not part of Article 13.
Shabnam Hashmi v UOI AIR 2014
1. That Right to life under Article 21 includes right to adopt. If a personal law prohibits adoption than that is violative of Article 21.
2. Whether right to adopt violates Article 21?
3. JJ Act allows for adoption and that is a secular. Anyone regardless of their personal law can adopt children. Some said that JJ Act does not include Muslims.
4. SC rejected that contention.

SHAYARA BANU v UOI 2017 (Triple Talak Case)

Facts–

Married in April 2001 to the Allahabad-based property dealer Rizwan Ahmed, she endured domestic violence and physical torture at the hands of her husband and in-laws, who allegedly demanded additional dowry and a car from her parents. Her father, a low-earning government employee, had made special efforts to arrange her marriage beyond his capacity.
1. As per her claim, she was often beaten and kept hungry in a closed room for days.
2. The final cut came in October 2015, when her husband sent her a divorcenote by speed post. The letter contained a pronouncement of instant triple talaq. The custody of her two children, 11 and 13, was kept by the husband. When something “so wrong” happened, she thought that there must be a law to prevent this. She challenged the same, praying for a writ to be issued by the Supreme Court declaring the divorce as “void ab initio” on the grounds that it violated her fundamental rights. As a consequence, constitutional validity of Triple Talaq was called into question before a Constitution bench of the Supreme Court comprising of 5 judges.

Issue–

Is Talaq-e- biddat Islamic in nature? Whether it is part of Muslim personal law?
1. Whether the Muslim Personal Law (Shariat) Act, 1937 confers statutory status to the subjects regulated by it or is it still covered under “Personal Law” which is not “law” under Article 13 of the Constitution as per previous the Supreme Court judgments?
2. Is it protected by Article 25 of the Constitution?

Held–

Whether TTT is part of Muslim personal law? Does it apply to Muslims by the virtue of Shariat Act? Does Shariat Act codifies Muslim personal law?
1. This law does not codify but clarifies that it will be Sharia and not custom and usages that would be the basis of decision where parties are Muslims.
2. Kurian Jospeh says that this court in Shamim Ara has already said that TTT is not instantaneous in Sharia. U need to have reflection and reconciliation and there is time gap between first talak ad final one. TTT is not part of Sharia at all. So there is no question of..
3. Nariman and Lalit says that Shariat Act was codification of personal law and therefore it will come under purview of Article 13. There is no need to reexamine Narasu but it need to be examined
4. Justice Kehar and Nazir, say that TTT is part of Shariat but Shariat Act did not codify Shariat. Reasoning of Narasu Appa Mali used to keep personal law out of the purview of Article 13.
5. JSKehar–
  1. (70-81)The underlying idea behind the preservation of ‘personal laws’ was, to safeguard the plurality and diversity among the people of India.
  2. However, the sustenance of such diverse identities, according to the learned Attorney General, cannot be a pretext for denying women their rightful status and gender equality.
  3. It was submitted, that ‘personal law’ was a part and parcel of “law” within the meaning of Article 13.
  4. It was submitted, that the meaning of “law” as defined in clauses (2) and (3) of Article 13 is not exhaustive, and should be read as if it encompassed within its scope, ‘personal law’ as well.
  5. The SC has actively tested personal laws on the touchstone of fundamental rights in cases such as-
    1. Daniel Latifi v. Union of India, (2001) 7 SCC 740 (5-Judge Bench),
    2. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (5- Judge Bench),
    3. John Vallamatom v. Union of India, (2003) 6 SCC 611 (3- Judge Bench)
    4. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525,
  6. (80-81)-That legislation on an issue would override ‘personal law’ on the matter, it was pointed out, that in the absence of legislation ‘personal laws’ in the Indian context, could not be assailed on the basis of their being in conflict with any of the provisions contained in Part III of the Constitution – the Fundamental Rights.
  7. That in framing Article 13, the choice of the words “custom and usage” and the exclusion of the expression “personal law” needed to be taken due note of.
  8. It was submitted, that if the term ‘personal law’ was excluded from the definition ‘law in force’ deployed in Article 13, then matters of faith having a direct relationship to some religious denomination (matters of ‘personal law’), do not have to satisfy the rights enumerated in Articles 14, 15 and 21 of the Constitution.
  9. It was also pointed out, that the interpretations relied upon on behalf of the petitioners, were mostly of scholars who did not belong to the Sunni faith, and were therefore irrelevant, for the determination of the interpretation of the believers and followers of the Hanafi school of Sunni Muslims. One of the scholars relied upon, according to learned senior counsel, was a disciple of Mirza Ghulam Ahmed (the founder of the Quadini school), who declared himself to be the Prophet, after the demise of the Prophet Muhammad. PBUH
  10. It was submitted, that the Shariat Act did not decide what was, or was not, Muslim ‘personal law’ – ‘Shariat’. It would therefore be a misnomer to consider that the Muslim Personal Law (Shariat) Application Act, 1937, in any way, legislated on the above subject.
  11. It was contended, that social reforms with reference to ‘personal law’ must emerge from the concerned community itself. It was reiterated, that no court should have any say in the matter of reforms to ‘personal law’.
  12. It was submitted, that it was not within the domain of judicial discretion to interfere with the matters of ‘personal law’ except on grounds depicted in Article 25(1) of the Constitution.
  13. (108-109)–It was submitted, that Section 2 aforesaid, commenced with a non obstante clause. It was pointed out, that the aforesaid non-obstante clause was referable only to amplify the exclusion of such customs and usages, as were contrary to Muslim ‘personal law’ – ‘Shariat’.
  14. It was submitted, that the Muslim ‘personal law’ had not been subsumed by the statute nor had the 1937 Act codified the Muslim ‘personal law’.
  15. It was submitted, that the 1937 legislation was only statutorily declared that the Muslim ‘personal law’, as a set of rules, would govern the Muslims in India, and that, it would be the Muslim ‘personal law’ that would have an overriding effect over any custom or usage to the contrary.
  16. It was pointed out, that the Shariat Act did not substitute, nor did it provide for any different set of rights and obligations other than those which were recognized and prevalent as Muslim ‘personal law’ – ‘Shariat’.
  17. (158-165)–The position seems to be clear, that the judicial interference with ‘personal law’ can be rendered only in such manner as has been provided for in Article 25 of the Constitution. It is not possible to breach the parameters of matters of faith, as they have the protective shield of Article 25.
  18. It would be pertinent to mention, that the constitutional protection to tenets of ‘personal law’ cannot be interfered with, as long as the same do not infringe “public order, morality and health”, and/or “the provisions of Part III of the Constitution”. This is the clear position expressed in Article 25(1).
  19. Viewed from any angle, it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’.
  20. We are also satisfied, that it has no nexus to ‘morality’, as well. Therefore, in our considered view, the practice of ‘talaq-e-bidet’ cannot be struck down on the three non-permissible/prohibited areas which Article 25 forbids even in respect of ‘personal law’.
  21. The fundamental rights enshrined in Articles 14, 15 and 21 are as against State actions.
  22. A challenge under these provisions (Articles 14, 15 and 21) can be invoked only against the State.
  23. It is essential to keep in mind, that Article 14 forbids the State from acting arbitrarily. Article 14 requires the State to ensure equality before the law and equal protection of the laws, within the territory of India.
  24. Likewise, Article 15 prohibits the State from taking discriminatory action only on the grounds of religion, race, caste, sex or place of birth, or any of them. The mandate of Article 15 requires, the State to treat everyone equally.
  25. Even Article 21 is a protection from State action, inasmuch as, it prohibits the State from depriving anyone of the rights enuring to them, as a matter of life and liberty (except, by procedure established by law).
  26. We have already rejected the contention advanced on behalf of the petitioners, that the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, did not alter the ‘personal law’ status of ‘Shariat’.
  27. We have not accepted, that after the enactment of the Shariat Act, the questions/subjects covered by the said legislation ceased to be ‘personal law’, and got transformed into ‘statutory law’. Since we have held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ – ‘Shariat’, cannot be tested on the touchstone of being a State action.
  28. ‘Personal law’, being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India, more particularly, the provisions relied upon by the petitioners, to assail the practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the Constitution.
6. FS Nariman-
  1. WHAT IS SHARIAT?
  2. There is in Islam a doctrine of ‘certitude’ (ilm al-yaqin) in the matter of Good and Evil.
  3. We in our weakness cannot understand what Good and Evil are unless we are guided in the matter by an inspired Prophet.
  4. Good and Evil – husn (beauty) and qubh (ugliness) – are to be taken in the ethical acceptation of the terms. What is morally beautiful that must be done; and what is morally ugly must not be done. That is law or Shariat and nothing else can be law.
    1. But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly?
    2. These are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Qur’an which is the very word of God. Supplementary to it we have Hadith which are Traditions of the Prophet –the records of his actions and his sayings – from which we must derive help and inspiration in arriving at legal decisions.
  5. If there is nothing either in the Qur’an or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it.
  6. Shariat Act is a pre-constitutional legislative measure which would fall directly within Article 13(1) of the Constitution of India.
  7. It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore, it is very difficult to accept the argument on behalf of the Muslim Personal Board that Section 2 does not recognize or enforce Triple Talaq.

Indian Young Lawyers Association v State of Kerala 2018 (Sabrimala case)

Justice Chandrachud–
The Respondents have urged that the exclusion of women from the Sabarimala temple constitutes a custom, independent of the Act and the 1965 Rules.
Article 17 is there as a matter of abundant caution and not just my mere implication under Article 13 under custom and usages.
If you say that personal laws cannot be tested on the touchstone of constitution, that amounts to denying the primacy of constitution in a system of constitutional supremacy.
Also personal law governs so vast number of people and if unjust personal laws are not tested on the ground of constitution, then many people are deprived for constitutional rights and this fails the purpose of constitution which is clearly not what constitution makers would have desired.
Indian constitution is transformative in a sense that it breaks away from the practices of the past that militates against constitutional values, and leaving personal laws out of the purview of constitution amounts to tacit support for continuance of such unjust laws which manifestly militates against constitutional values.
Narasu has been called bad law in this case.

AMENDMENTS AS LAWS WITHIN MEANING OF ARTICLE 13(2)

Article 368-as stood originally
Difference between law and the amendment
The nature of State in view Western Liberal Philosophy-Evil and dispotic
In post World War II constitutions-understanding that state cannot be just night watchman, it has to be a welfare state, not just to prevent disorder but re-create a better order. State has to play a positive role of engagement with society and just the negative role of non-interference.
How is that possible?
1. Do FR have to necessarily give way for social formation.
Immediately after coming into force of Indian constitution, State passes a law abolishing Zamindari. It was passed by same body and person who made the constitution. Article 31A and 31B were inserted in the constitution.
Article 31A-
Article 31B-creates the 9^th Schedule.
The amendment was finally challenged in-
Shankari Prasad Deo v UOI AIR 1951 SC 458 (5)

Facts-

Issue-
Held (Justice Patanjali Shashtri)–The State includes Parliament (Article 12) and law must include constitutional amendment. It was the deliberate intention of framers of the constitution, who realised the sanctity of the FR conferred by Part III to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments. It is not uncommon to find in written constitutions a declaration that certain fundamental rights conferred on the people should be “eternal and inviolate” as for instance article 11 of the Japanese Constitution. Article 5 of the American Federal Constitution provides that no amendment shall be made depriving any State without its consent “of its equal suffrage in the Senate.” The framers of the Indian Constitution had the American and the Japanese models before them, and they must be taken to have prohibited even constitutional amendments in derogation of fundamental rights by using aptly wide language in Article 13(2).
Although ‘law’ must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.
On the other hand, the terms of Article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect.
In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other.
Having regard to the considerations adverted to above, we are of opinion that in the context of article 13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.
If the wanted to include amendment in Article 13, they would have expressly said so.
Sovereign power is unlimited but legislative power is not.
Sajjan Singh v State of Rajasthan AIR 1965 SC 845 (5J)

Facts–

Issue-17th amendment which placed some laws in 9^th schedule was challenged.

Held-

(Hidayatullah J)–
1. It may be said that the words of Art. 368 are quite explicit.
2. Article 368 does not give power to amend “any provision” of the Constitution. It only lays down the manner of the amendment of “this Constitution” but by “this Constitution” it does not mean each individual article wherever found and whatever its language and spirit.
3. The Constitution itself indicates in some places a contrary intention expressly (See Articles 4, 169 and the former Art. 240) and in some others by implication (See Art. 1 1).
4. What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment. The contrast between the opening part and the proviso does not show that what is outside the proviso is necessarily within the powers of amendment. The proviso merely puts outside the exclusive Power of Parliament to amend those provisions ‘on which our federal structure rests.
5. The constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. The anomaly that Art. 226 should be somewhat protected but not Art. 32 must give us pause.
Mudholkar J-concurs with the majority but differs in the reasoning.
1. That amendment is like any other legislature except that amendment requires special majority.
2. There is nothing in the constitution which makes distinction between legislative and amending power of parliament.
3. The language of Art.368 is plain enough to show that the action of Parliament in amending the Constitution is a legislative act like one in exercise of its normal legislative power, The only difference in respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amendments which do not attract the proviso to Art. 368). The result of a legislative action of a legislature cannot be other than ‘law’ and, therefore, it seems to me that the fact that the legislation deals with the amendment of a provision of the Constitution would not make its result ,any the less a ‘law’. Article 368 does not say that when Parliament makes an amendment to the Constitution it assumes a different capacity, that of a constituent body.
4. If you say that amending power of constitution is unlimited, does that mean they can amend the entire constitution.
5. If Parliament does that, is it just amending the constitution or rewriting the constitution?
6. The constituent assembly could have gone on to British Parliamentary Sovereignty but it didn’t. Doesn’t that mean, that CA want to give permanency to constitution.
7. The constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the union executive responsible to Parliament and the State executives to the State legislatures; erected a federal structure and distributed legislative power between Parliament and the State legislatures; recognised certain rights as fundamental and provided for their enforcement; prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicate of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution? It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Art.368?
IC Golaknath v State of Punjab AIR 1967 SC 1643 (11J)
1. Issue-Whether u can have amendment that violates FR?

Held–

No amendment can violate FR as amendment is law within the meaning of Art.13
1. Subbarao J-
  1. FR are guaranteed by the constitution.
  2. DPSP can be enforced without violating FR.
  3. To the extent, that FR can be limited, it is expressly provided in the constitution in Article 33, Article 34.
  4. If Parliament can not violate FR through any law even by unanimous vote. So how can the same body violate FR, via amendment which involve 3/4^th amendment.
  5. Article 144-Civil and Judicial authoritative to act in aid of the SC.
  6. Article 368 only lays down the procedure for amendment. So power to amend lies somewhere else–
    1. Article 245, Article 246, Article 248 to be read entry 97 of list 1 of Schedule 7.
      1. Conjoint reading of all these provisions tells us that matters residuary power rests with Union.
      2. There is no express provision in Schedule 7 that talks about amendment.
      3. So Amending power is a residuary power.
      4. And Article 245 says that law making power is subject to provisions of this constitution. Does it means that parliament cannot amend any provision of the constitution?
        
        Going by the reasoning of Subbarao Yes.
  7. Article 368 requires same procedure as in making of any other law except special majority. This indicate that amendment is same as any other law.
  8. Also, If you cannot make any law even by unanimous vote, how can u do the same by amendment with 3/4^th majority?
  9. You can amend the FR augment it and not to do away with it and abridge it.
  10. We understand that extremely rigid constitution invites rebellion against the constitution but we are not concerned with that.
  11. FR can only be amended by rebellion against constitution and calling of new constituent assembly.
  12. Conclusion–
    1. Power to amend comes from not 368 but Article 245, Article 246, Article 248 to be read entry 97 of list 1 of Schedule 7 and since it is a legislative process, it cannot take away or abridges the FR.
    2. Hidayatullah says that Shankari Prasad was wrongly decided-
      1. If Parliament cannot do something by unanimous vote (make nay law violating FR) how it it do the same by 3/4^th majority (amendment).
      2. Difference between constituent power and legislative power is vogue and does not make sense.
      3. The moot question is how much can we trust Parliament with our FR?
      4. Parliament today is not a constituent body unlike CA. Current body is a constituted body under the constitution and must bears allegiance to its origin.

Dissent–

Justice Wanchoo (Dissent)–
1. Article 368 is a self-contained part of the constitution which seems to indicate that it has both the power to amend and the procedure to amend.
2. All that you need to do is follow the procedure and the constitution will stand amended.
3. Ordinary law are subject to constitution but constitution is sui-generis and its validity depends upon its acceptance. In that sense, amendment and other laws are different.
4. If you say that amendment includes unlimited power, he says that that power does not go that power.
5. If constitution is too rigid, it invites revolt. Amending power is just a safety valve. Framers wanted the constitution to endure for a long time.
6. Having a flexible constitution is key to an entrenched constitution.
7. Broad point they are making that-If 13 wanted to include amendment, it would have expressly done so.
Government of the Day did not took this very kindly and introduced Article 13(4) in the constitution by 24^th amendment-
1. Article 13(4)–Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
2. Article 368
  1. Added-Power of Parliament to amend the Constitution and procedure therefore.
  2. 368(1)–Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
  3. 368(3)-Nothing in Article 13 shall apply to any amendment made under this article.
3. Then comes-Keshawananda Bharti case-
Keshawananda Bharti v State of Kerala 1973 4 SCC 225 (13J)

Issue–

Validity of 24th, 26th and 29th amendments

Held–

11 Judgements given out of 9 say that amendments are not law within the meaning of Article 13.
1. There is a difference between constituent power and legislative power. (also talked about in Shankari Prasad)
2. The criteria of validity of legislation is Article 13
3. The criteria of validity of constitution is Sui-generis.
4. Qualitative Difference between law and amendment.
5. On question as to whether Power to amend is a legislative power flowing from 248 read with entry 97 of list 1 of schedule 7, they said that after the amendment the power flows from Article 368. And its is an unlimited power.
6. So now 368 contains both the power and procedure.
7. They reject the contention that FR are transcendental and eternal but that they were part if the negotiations during the making up of the constitution. They might be convenient for one generation but not for other generation.
8. An amendment was proposed in CA in Article 368 that it be subjected to FR, but that amendment was later withdrawn without any discussion. That means that FR can be amended.
9. First amendment was passed by provisional parliament which was same body that framed the constitution.
10. 9 of the 11 judges makes the point that law does not include constitutional amendment.
11. But the question on which there is 7-6 split is-
12. Whether there is any limitation on power of parliament to amend the constitution?
  1. 6 judges say that there is something that is called the basic structure of the constitution which cannot be amended and FR is part of the basic structure.
  2. So even though Article 13 does not poses restriction but basic structure doctrine does.
  3. 6 other judges say that power of parliament to amend any part of constitution is unlimited.
  4. Khanna’s is the controlling opinion–That parliament can amend any part of the constitution including FR but that amendment can not be in the nature of destroying the very basic structure if the constitution. VVVVIMP
    1. In this manner Khanna sides with 6 other judges holding that basic structure doctrine.
  5. The word “Amendment” itself contains restriction that constitution cannot be abrogated altogether but modified and altered. The old constitution cannot be done away with but retained in modified form.
  6. The words amendment of the constitution with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368.
  7. Para 7 of the 5^th schedule-uses the word amend, add, vary or repeal. But in Article 368, only amend has been used. It means that constitution cannot be repealed.
  8. Amendment is not same as repeal.
  9. Power to amend therefore is a limited power. It cannot change the very identity of the constitution.
  10. Principles that are so inherent in this constitution that if they are changed would alter the constitution.
  11. Minimum Requirement–If the power of amendment does not comprehend the doing away of the entire Constitution but postulates retention or continuity of the existing Constitution, though in an amended form, question arises as to what is the minimum of the existing Constitution which should be left intact in order to hold that the existing Constitution has been retained in an amended form and not done away with. In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be considered to continue even though other provisions have undergone change. On the contrary, if the basic structure is changed, mere retention of some articles of the existing Constitution would not warrant a conclusion that the existing Constitution continues and survives.
  12. What is the basic structure of constitution? They did not propound any exhaustive list.
  13. It is urged that even though the Parliament in compliance with Article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right.
  14. In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental; right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core. There is also no objective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to introduce uncertainty in a matter of so vital an importance as the amendment of the Constitution. I am, therefore, unable to accept the argument, that even if a fundamental right be held to be amendable, the core or essence of that right should be held to be immune from the amendatory process.
  15. Principles which form the core of this constitution such as Democracy.
  16. When u are talking about basic structure, u r not talking about specific provisions but the underlying principles or amalgamation of those core principles.
    1. For example-Article 19(1)(f)-He says that this Article can be repealed and amended. But it cannot be done in a way that destroys it essence.
After emergency a new 13 bench was constituted to review the Keshawananda Bharti case–
1. 5 of them left by 1975. Emergency was already imposed at this time. Nani Palkiwala questions that who has filed this review. Some said that Tamil Nadu has filed this review petition but advocate general of TN stood up and denied this.
During the Emergency Government brought 42^nd amendment and brought clause 4 and 5 of Article 368.
1. Article 368(4)–No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty- second Amendment) Act, 1976] shall be called in question in any court on any ground.
2. Article 368(5)–For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
Supreme Court in MINERVA MILLS V UOI AIR 1980 SC 1789 stuck down this amendment on the basis of Basic Structure Doctrine.
1. SC refused to read down this amendment.
2. ‘Since the constitution had conferred a limited amending power on the Parliament, the parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.’
3. Gave ex-post facto ratification to Keshawananda Bharti case.
In some recent case-particularly in M NAGRAJ V UOI 2006 and IR COHELLO V STATE OF TN 2007 (9J) seems to reopen to the question whether Basic Structure includes provision or only principles.
NJAC Judgement-SCAORA v UOI 2015 (4^th Judges case)-entire NJAC is unconstitutional.
1. What is the consequence of holding that it violates the Basic Structure? Does the old provision (pre-amended) gets revived or not?
  1. No. Not according to General Clauses Act unless there is express provision in the last Act.
  2. But SC in this case said that, this aspect of GC will not apply to Amendments.
If amendments are law for the purposes of Article 13, then you can also not amend Article 368.
If you can amend part III, then you can also amend Article 13.
In GOLAKNATHcourt said that Article 13 is just there as a matter of ABUNDANT CAUTION. Even if it was not there, still parliament could not amend part III.
1. Hidayatullah says that Article 13 gives an inclusive definition which ordinarily include amendments.
2. If they didn’t want to include amendments here, they would have expressly said so.
Article 32 guarantees fundamental Right. What does it mean? That it cannot be tampered with on whims and fancies.
Imp Questions-No SC during colonial regime to protect people’s right. No SC could prevent. It were the people who effectively dealt with all the situations, gave themselves the constitution, created the constitution. Why then distrust the people and be so skeptical about people’s power. Also it is the people whom the state fears more than it fears the courts?

ARTICLE 12-WHAT IS STATE?

ARTICLE 12–In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

ARTICLE 36–In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.

Suppose that Govt. empowers Ministry of Information Technology to shut certain social media society. Would that be state?
UGC set up under UGC Act says that we are instructing all Universities to stop social media sites on campus. Could you take University to court?
What if a Khap Panchayat bans social media sites?
Why not anyone who exercises authority over me should be a State?
We should look at the nature of power being exercised. Kind of Authority that Khap exercises is like a State.
Who authorised you and What function you are performing?
1. Object of fundamental right is two fold-
  1. Everyone should be able to challenge violation of FR.
  2. Binding on every authority on which power has been vested including governments and panchayats and every authority created by law. That you should have law making function.

University of Madras v Shantabai AIR 1954 Mad 67
1. Facts-Shantabai applies for admission in a college and she is denied because she is a woman? Challenged under Article 15
2. Issue-Whether varsity of Madras is State?

Held–

Whether the University is local or other authority?
1. “Other authority” has to be looked as ejusdem generis.
2. Authorities exercising governmental functions.
3. Madras University is not exercising govt functions but a body corporate constituted by govt. its function is purely to promote education. It is a completely separate personality from government.
4. Though it is financially helped by State but it has its own fund. So its State-aided entity and not maintained by State.
5. For entity to be State, it should be wholly maintained by State.

Rajasthan State Electricity Board v Mohan Lal (1967 AIR 1857)

Facts–

The case involved a promotion dispute between some workmen and the Rajasthan State Electricity Board RSEB. Articles 14 and 16 claims were raised, and consequently, the preliminary question that fell to be determined by the Court was whether the Board came within the purview of Part III, by virtue of being “State” (other authority) under Article 12.
1. The RSEB was a corporate body that had been constituted under an Act (the Electricity Supply Act, 1948), for the purposes of supplying electricity within the State of Rajasthan.
2. The Board argued that the phrase “other authority” must be read ejusdem generis iethat is, when a law refers to a number of specific categories, and then ends with a general clause, that general clause must be understood only to contain those things which are part of the common genus to which the specific categories belong.
  1. To take a banal example, “BJP, Congress, AAP, TMC and other political parties” does not include the American Democratic Party, because clearly, what is being referred to is Indian political parties.
3. According to the board, the common class running through Article 12 was bodies exercising governmental functions. The Electricity Board, on the other hand, was set up by a statute to carry out commercial activities. Thus – the Board argued – it could not be brought within the ambit of Article 12.
4. It cited decisions from the High Courts of Madras, Mysore and Punjab to contend that Article 12 was limited to “a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the State exercises its legislative or executive power. In those cases, State Universities had been found not to fall within the ambit of Article 12.

Held–

Rejecting this argument and overturning the judgments of the High Courts, the Supreme Court declined to apply the principle of ejusdem generis, holding that there was no common “genus” running through Article 12. Instead, it turned to the dictionary for the meaning of the word “authority”.
1. [Authority means] a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue-producing public enterprise.” This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions.
2. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India.
3. According to this language, the test appears to be two-pronged:
  1. Either the body is created by a statute, or
  2. It is under the control of the government.
4. Subsequently, however, the Court appears to run them together, holding that “the expression “other authorities” in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law.” (MAIN ARGUMENT)
5. Or, in other words, the key test is a statutory connection between the government and the body in question (“control”, perhaps, is a function of creation by statute).
6. The fact that the functions were commercial were irrelevant, since the State itself could clearly carry out trade and business.
7. Thus, the Board – having been established by Statute – was found to come within the scope of Article 12.
8. Justice Shah-
9. Justice Shah placed special importance on “sovereign power”, which he appeared to understand as an ability to affect fundamental freedoms in a far-reaching. Therefore, his reasons for holding that the Board fell within Article 12 was not that it was created by statute, but that:
  1. The Board is an authority invested by statute with certain sovereign powers of the State. It has the power to fix grid tariff; to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board.
10. The majority and the concurrence represent two approaches to Article 12, which we may label as-
  1. The Legal Approach
  2. The Functional Approach
11. The Legal Approach begins with a certain understanding of the paradigm case of the “State” (the government itself”, and assimilates to “State” those entities that seem to bear a close family resemblance to it. This translates into entities that the government itself creates, or seems to have near-complete control over.
12. The Functional Approach, on the other hand, starts from the perspective of the individual, and the individual’s guaranteed rights that act as limits upon the sovereign power of the State. Bodies that can affect those rights in a manner similar to that of the State, are – under this view – assimilated to the State.
13. Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of “State” in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, “State” within the meaning of Art. 12 of the Constitution. Because Private individual cannot place reasonable restrictions as mentioned in many Fundamental Rights.

Problems–

Very restricted approach
1. Ignores the phrase-“Unless the context otherwise requires” used in Article 12, which implies that State can be different entities for different purposes.
Bhargava, J. delivering the judgment for the majority pointed out that the expression “other authorities” in Article 12 would include all Constitutional and statutory authorities on whom powers are conferred by law. The learned judge also said that if any body of persons has authority to issue directions, the disobedience of which would be punishable as a criminal offence, that would be an indication that that authority is ‘state’.
Justice Shah who delivered a separate judgment agreeing with the conclusion reached by the majority preferred to adopt a slightly different meaning to the words “other authorities”. He said that authorities, Constitutional or statutory, would fall within the expression ‘state’ as defined in Article 12 only if they are invested with sovereign power of the State, namely, the power to make rules or regulations which have the force of law.
Only those entities which are created by a statute and have power to restrict fundamental right should be considered State.

Sukhdev v Bhagat Ram (AIR 1975 SC 1331)

Facts–

That case involved three public corporations – the Oil and Natural Gas Corporation, the Life Insurance Corporation and the Industrial Finance Corporation.

Issue–

Whether an order for removal from service contrary to regulations framed under the ONGC Act, 1959 and the Life Insurance Corporation Act, 1956 would enable the employees to a declaration against the statutory corporation of continuance in service or would only give rise to a claim for damages?
1. Whether an employee of a statutory corporation is entitled to claim protection of Articles 14 and 16 against the Corporation?

Held–

A majority of the Court read Rajasthan Electricity Board to have established the narrower proposition that Article 12 was attracted if the body had the power to issue directions whose disobedience could be punished by criminal law, or if it had the power to make, administer and enforce rules and regulations.
1. The majority’s narrow decision holding all three corporations to fall within the meaning of “State”, although clearly correct under both the majority and the concurrence opinions in Rajasthan Electricity Board does not, however, get us very far in a conceptual understanding of Article 12.
2. Such an analysis was provided by Justice Mathew, in a concurring opinion, although it is extremely difficult to determine a coherent ratio from that judgment.
3. In the beginning, Justice Mathew seemed to adopt both the legal and the functional approach, merging them into one test, which he called “the agency and instrumentality” approach.
4. Entering into a lengthy historical disquisition, he argued that as the role of the State changed from merely establishing law and order to providing for the public welfare, much of those welfare functions began to be performed through the means of corporations.
5. The Constitution was framed on the theory that limitation should exist on the exercise of power by the State.
6. The assumption was that the State alone was competent to wield power. But the essential problem of liberty and equality is one of freedom from arbitrary restriction and discrimination whenever and however imposed. The Constitution, therefore, should, wherever possible, be so construed as to apply to arbitrary application of power against individuals by centers of power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the Constitutional limitation as the State itself. The pre-conditions of this are two, namely, that the corporation is created by State, and, the existence of power in the corporation to invade the Constitutional right of individual.
7. The intriguing point about this paragraph is that it is based on a non-sequitur. If the Constitution ought to apply to wherever there is arbitrary application of power be centres of power, it does not follow – at all – a corporation must be State-created to fulfill those conditions (again, Reliance is a classic example). In other words, in substance, Justice Mathew put forward an argument for the functional approach, but in conclusion, he subordinated it entirely to the legal approach. In fact, he takes the majority and concurring opinions in Vidya Verma, and holds that the requirements laid out in both must be satisfied for Article 12 to be attracted!
8. Immediately afterwards, however, he moved away from that conclusion, noting that:
  1. Generally speaking, large corporations have power and this power does not merely come from the statutes creating them. They acquire power because they produce goods or services upon which the community comes to rely.
9. The rest of the opinion is devoted to a meandering analysis that seems to constantly shift back and forth between some variants of the legal and the functional approach, talking about financial aid, tax exemptions, control over management policies, public functions… and ultimately comes to rest somewhere midway, expressed as:
  1. The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public.
Justice Matthew-
1. Whether, despite the fact that there are no provisions for issuing binding directions to third parties the disobedience of which would entail penal consequence, the corporations set up under statutes to carry on business of public importance or which is fundamental to the life of the people can be considered as ‘state’ within the meaning of Article 12?
  1. It is relevant to note that the Article does not define the word ‘state’. It only provides that ‘state’ includes the authorities specified therein.
  2. The question whether a corporation set up under a statute to carry on a business of public importance is a ‘state’ despite the fact that it has no power to issue binding directions has to be decided on other considerations.
  3. Part IV of the Constitution gives a picture of the services which the state is expected to undertake and render for the welfare of the people.
  4. Article 298 provider, that the executive power of the Union and State extends to the carrying on of any business or trade.
  5. A state is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the State.
  6. The tasks of government multiplied with the advent of the welfare state and consequently, the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a “specialised and highly technical character.
  7. The emerging principle appears to be that a public corporation being a creation of the State is subject to the Constitutional limitation as the State itself.
  8. The pre-conditions of this are two, namely,
    1. That the corporation is created by State, and,
    2. The existence of power in the corporation to invade the Constitutional right of individual.
2. The growing power of the industrial giants, of the labour unions and of certain other organized groups, compels a reassessment of the relation between group power and the modern state on the hand and the freedom of the individual on the other.
  1. The corporate organisations of business and labour have long ceased to be private phenomena.
  2. That they have a direct and decisive impact on the social, economic and political life of the nation is no longer a matter of argument.
  3. First, they have power over the millions of men and women whose lives they largely control as employees or as members.
  4. Second, they exercise power more indirectly, though not less powerfully, over the unorganized citizens whose lives they largely control through standardized terms of contract, through price policy, through the tempo of production and the terms and conditions of labour.
  5. Last, they exercise control over the organized community, represented by the organs of State, in a multitude of ways; direct lobby pressures, control over election and policies of the elected representatives of the peoples and far-reaching control over the mass media of communication.
3. Individual invasion of individual right is not, generally speaking, covered by Article 13(2).
  1. In other words, it is against State action that fundamental rights are guaranteed.
  2. Wrongful individual acts unsupported by State authority in the shape of laws, customs, or judicial or executive proceeding are not prohibited.
  3. Articles 17, 23 and 24 postulate that fundamental rights can be violated by private individuals and that the remedy under Article 32 may be available against them.
  4. But, by and large, unless an act is sanctioned in some way by the State, the action would not be State action.
4. The state may aid a private operation in various ways other than by direct financial assistance.
  1. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes.
  2. All these are relevant in making an assessment whether the operation is private or savours of state action.
5. Life Insurance Corporation-
  1. It is clear from the provisions that the Central Government has contributed the original capital of the LIC,
  2. That part of the profit of the Corporation goes to that Government, that the Central Government exercises control over the policy of the Corporation,
  3. That the Corporation carries on a business having great public importance and that it enjoy a monopoly in the business.
  4. I think, these corporations are agencies or instrumentalities of the ‘state’ and are, therefore, ‘state’ within the meaning of Article 12.
  5. The fact that these corporations have independent personalities in the eye of law does not mean that they are not subject to the control of government or that they are not instrumentalities of the government.
  6. These corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally.
6. When it is seen from the provisions of that Act that on liquidation of the Road Corporation, its assets should be divided among the shareholders, namely, the Central and State governments and others, if any, the implication is clear that the benefit of the accumulated income would go to the Central and State governments.
  1. Nobody will deny that an agent has a legal personality different from that of the principal.
  2. The fact that the agent is subject to the direction of the principal does not mean that he has no legal personality of his own.
  3. Likewise, merely because a corporation has legal personality of its own, it does not follow that the corporation cannot be an agent or instrumentality of the state, if it is subject to control of government in all important matters of policy.
7. The second question for consideration is whether an order of removal or dismissal from service contrary to the regulations framed by these corporations in the exercise of power conferred in that behalf would enable an employee to a declaration against them for continuance in service or would give rise only to a claim for damages.
  1. This will depend upon the question whether the regulations framed by these corporations would have the force of law and even if they have not the force of law, whether the employment is public employment and, for that reason, the employee would obtain a status which would enable him to obtain the declaration.
  2. I think that employment under public corporations of the nature under consideration here is public employment and therefore the employee should have the protection which appertains to public employment.
8. The test by majority is–
  1. What is the nature of control exercised by government in the management of these institutions?
  2. What is the nature of activity being performed by the entity? Whether it is essential for public?
  3. Whether it has power to issue direction to the determent of citizens?
9. Justice Matthew-
  1. Whether entities which do not have power to issue directions to the determent of citizens will be state?
  2. Whether private entities can be state?
    1. It depends upon-
      1. Nature of Financial support received by government
      2. Unusual degree of State control over management
      3. Combination of State Aid
      4. Important public function
  3. State Action Doctrine US-The need to subject the power centers to the control of Constitution require an expansion of the concept of State action. The historical trend in America of judicial decisions has been that of bringing more and more activity within the reach of the limitations of the Constitution. “The next step would be to draw private governments into the tent of state action. This is not a particularly startling proposition, for a number of recent cases have shown that the concept of private action must yield to a conception of state action where public functions are being performed.

RD Shetty v International Authority AIR 1979 SC 1628 (3J)

Issue–

Whether International Airport Authority (a body corporate) is State within meaning Article 12?

Held–

It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government.
1. Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary,
2. Whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions.
3. This is particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency.
4. Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case.
5. It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative affect of all the relevant factors that is controlling.
6. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of govt.
7. But merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity.
8. But the public nature of the function, if impregnated with governmental character or “tied or entwined with Government” or fortified by some other additional factor, may render the corporation an instrumentality or agency of government.
9. Specifically if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference.

Ajay Hasia v Khalid Mujib Sehravardi (1981 AIR 487) (5J)

Facts–

The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India and it is run by a society created under a statute.
1. The petitioners applied for admission to the first semester of the B.E. course and appeared in the written test which was held on 16th and 17th June, 1979.
  1. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee.
  2. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination.
  3. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners.

Issue–

Whether the Society in the present case is an “authority” falling within the definition of “State” in Article 12?
1. Is it an instrumentality or agency of the Government?

Held–

Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is-
1. That the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution.
2. It would appear that prima facie protection against infraction of Article 14 is available only against the State
  1. Complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of Article 14.
3. The Society in the present case is an “authority” falling within the definition of “State” in Article 12.
  1. It is an instrumentality or agency of the Government if we have regard to the Memorandum of Association and the Rules of the Society.
  2. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government.
  3. The money required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments.
  4. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction.
  5. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee.
  6. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments.
4. 6 indicative factors-
  1. Whether the Entire capital is owned by State?
  2. So much financial assistance by State
  3. Whether State confers or protects the monopoly of the entity?
  4. Whether Deep and pervasive control over management?
  5. Whether Performs Important public function?
  6. Earlier it would be done by State department but later transferred to this entity.
5. Ajay Hasia marks a shift from jurisprudence of previous cases.
6. If the Society is an “authority” and therefore “State” within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14.
7. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely,
  1. (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
  2. (ii) that that differentia has a rational relation to the object sought to be achieved by; the impugned legislative or executive action.
8. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article.
  1. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality.
  2. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.
Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002 5 SCC 111) 7J

Facts–

Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and Industrial Research (CSIR) filed a writ petition claiming parity of remuneration with the stenographers who were newly recruited to the CSIR.
1. His claim was based on Article 14 of the Constitution.
2. A Bench of five judges of this Court denied him the benefit of that Article because they held in Sabhajit Tewari v Union of India that the writ application was not maintainable against CSIR as it was not an “authority” within the meaning of Article 12 of the Constitution.
3. The correctness of the decision is before us for re-consideration.

Issue–

Whether CSIR is State under S.12?

Held–

The Prime Minister of India is the President of the society.
1. Some of the members of the society and of the governing body are persons appointed ex-officio by virtue of their holding some office under the Government also.
2. There is some element of control exercised by the government in matters of expenditure such as on the quantum and extent of expenditure more for the reason that financial assistance is also granted by the Government of India and the later wishes to see that its money is properly used and not misused.
3. We sum up our conclusions as under:-
  1. Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of ‘other authorities’ in Article 12.
  2. To be an authority-
    1. the entity should have been created by a statute or under a statute and functioning with liability and obligations to public.
    2. Vested with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people their rights, duties, liabilities or other legal relations.
    3. If created under a statute, then there must exist some other statute conferring on the entity such powers.
    4. it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental.
    5. enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State.
    6. It is this strong statutory flavour and clear indicia of power constitutional or statutory, and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap.
  3. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5 and 6 are ‘functional’ tests.
  4. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State.
  5. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between ‘instrumentality and agency’ of the State and an ‘authority’ having been lost sight of sub-silentio, unconsciously and un-deliberated.
  6. In our opinion, and keeping in view the meaning which ‘authority’ carries, the question whether an entity is an ‘authority’ cannot be answered by applying Ajay Hasia tests.
  7. We are satisfied that the tests in Ajay Hasia’s case are not substantially or on essential aspects even satisfied to call CSIR an instrumentality or agency of the State.
4. A mere governmental patronage, encouragement, push or recognition would not make an entity ‘the State’.
5. Fallacy-Just because somebody has no law-making power does not mean that the entity is not a state. For Example-Police

CSIR-

The Government does not hold the entire share capital of CSIR. It is not owned by the Government.
1. Presently, the Government funding is about 70% and grant by Government of India is one out of five categories of avenues to derive its funds.
2. Receipts from other sources such as research, development, consultation activities, monies received for specific projects and job work, assets of the society, gifts and donations are permissible sources of funding of CSIR without any prior permission/consent/sanction from the Government of India.
3. Financial assistance from the Government does not meet almost all expenditure of the CSIR and apparently it fluctuates too depending upon variation from its own sources of income.
4. It does not enjoy any monopoly status, much less conferred or protected by Government.
5. The governing body does not consist entirely of Government nominees.
6. The membership of the society and the manning of its governing body – both consist substantially of private individuals of eminence and independence who cannot be regarded as hands and voice of the State.
7. There is no provision in the rules or the byelaws that the government can issue such directives as it deems necessary to CSIR and the latter is bound to carry out the same.
8. The functions of the CSIR cannot be regarded as governmental or of essential public importance or as closely related to governmental functions or being fundamental to the life of the people or duties and obligations to public at large.
True that there is some element of control of the government but not a DEEP AND PERVASIVE CONTROL.
To some extent, it may be said that Government’s presence or participation is felt in the society but such presence cannot be called a brooding presence or the overlordship of government.
The entity should be financially, administratively and functionally under the control of government.
Ajay Hasia factors are not rigid set of principles. Satisfaction of any one factor will not satisfy the test. All factors should be cumulatively looked at.
THIS CASE IS CONTROLLING FACTOR ON ARTICLE 12.
Zee Telefilms v Union of India (2005 4 SCC 649) – read these paragraphs in the dissenting judgment: 65-103 (IMP)

Facts–

The background facts in that case was that Zee Telefilms had bid for telecast rights for certain tournaments which had been cancelled by BCCI. Against this, Zee Telefilms had filed a Civil Writ Petition under Article 32 of the Constitution of India on the ground that the Board being recognized by the Union of India, Ministry of Youth Affairs and Sports could be considered to be ‘other authority’ for purpose of Article 12 of the Constitution of India and therefore capable of coming under Article 32/226 of the Constitution of India.

Majority–

The Honble Court by a majority of 3:2 held that when private bodies exercise public functions, they may be amenable to writ proceedings under Article 226 of the Constitution, even though the private body may not be a State within the meaning of Article 12 of the Constitution.
1. The main reason for not holding BCCI to be a State in the 2005 case was due to a “floodgates” principle that had been evolved. As per this reasoning, construing BCCI as a State would have wide reaching implications inasmuch as BCCI as well as sixty-four other federations as well as other institutions performing public functions would open themselves to a floodgate of litigation qua such federations and institution of matters under Article 32.
2. The Courts have repeatedly held that Article 226 is wider than Article 32 and therefore, a distinction needs to be made between discretion to approach the Courts under these Articles.
3. The majority, therefore, categorically held that BCCI was not “state” for purposes of Article 12.

Minority–

The minority on the other hand, held that floodgates litigation should be taken with a pinch of salt as there is always a reasoned principle of judicial review that can be exercised in such cases.
1. The dissenting judgment went on to reason that even if the board was performing public duties, not all duties were in the public domain, and therefore, only in respect of those functions which were ostensibly in the public domain would a writ lie. Therefore, there was no disability in considering BCCI to be a State for purposes of Article 12. A writ would not lie where the lis involves only private law character.
2. The floodgates principle was a doctrine that had evolved through common law by British Courts, who did not have a written constitution to fall back on.
3. The facts established in this case shows the following :-
  1. Board is not created by a statute.
  2. No part of the share capital of the Board is held by the Government.
  3. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board.
  4. The Board does enjoy a monopoly status in the field of cricket but such status is not State conferred or State protected.
  5. There is no existence of a deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies. This control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions.
  6. The Board is not created by transfer of a Government owned corporation. It is an autonomous body.
4. What are the guidelines laid down in Pradeep Kumar Biswas’s case (supra) for a body to be a State under Article 12. They are :-
5. Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.
6. The question in each case will have to be considered on the bases of facts available as to whether in the light of the cumulative facts as established, the body is FINANCIALLY, FUNCTIONALLY, ADMINISTRATIVELY dominated, by or under the control of the Government.
7. Such control must be particular to the body in question and must be pervasive.
8. Mere regulatory control whether under statute or otherwise would not serve to make a body a State.”
BCCI v Association of Bihar 2015 3 SCC 251 upheld the majority opinion of Zee Telefilms that BCCI is not State.
1. We currently apply the institutionally or agency test. We look at the control the government is exercising.
2. But there is another line of thinking-There might be institutions which are not controlled by government but perform such public function which is performed by State.
3. After looking at a number of judgments and decisions of various benches, the Learned Bench observed that even though the Board performed important public functions that were akin to State functions, (para 29 of the judgment), they can come under provisions of Article 226 and not Article 32. In BCCI, the Learned Bench formulated a “nature of duties and functions” test which could be the Indicia for determining criteria for categorising an institute as “State”. As seen from para 30 of the judgment, the Court detailed the number of functions that the Board performed and concluded that these functions were being carried out with the tacit concurrence of the State Government/Central Government who were supportive of the activities of the Board. The functions of the Board, therefore, are clearly in the public domain, which can be taken over by the State at any time, despite the fact that they are ostensibly a private body. Therefore, the Courts concluded keeping in mind all the public functions that although BCCI can be covered under Article 226, it may not be considered to be “State” for the purposes of Article 12.
CRWC report-other authorities should include…
Balco Employees Union v Union of India 2002 2 SC 333

Facts–

First case that test out new economic policy.
1. As per new economic policy, 51% of its shares were devolved on private entities especially sterilite.
2. Its employees challenged this that by 51% disinvestment state is robbing them of their fundamental rights such as Article 14 and 16. And in such important matter, they should have been heard as well.

Held–

Balco was a corporation and has power to sell its share. If it changes its character from State to Private entity, it can do so.
PB Ghayalod v Maruti Udyog Limited AIR 1992 Del 145

Facts–

Whether Maruti Udyog Ltd is State? 60% shares held by govt, 40% by private entities.

Held–

It is not as there is no pervasive control.
1. Finances are not only funded by govt but by other Banks.
2. Not completely owned by the government.
3. If we look at the 6 standards of Ajay Hasia, Maruti does not meet that test.
What happens when State delegates its function to private individuals?
What functions can state delegate to private individuals?
1. In US, prisons are privatised.
2. Military being privatised
Are there some functions, which state should not be allowed to privatised?
Nandini Sunder v State of Chattisgarh 2011 7 SCC 547

Facts–

Held–
It is obvious that the State is using the engagement of SPOs, on allegedly temporary basis and by paying “honoraria”, to overcome the shortages and shortcomings of capacities and forces within the formal policing structures. The need itself is clearly a long-run need.
1. Consequently such actions of the State may be an abdication of constitutional responsibilities to provide appropriate security to citizens, by having an appropriately trained professional police force of sufficient numbers and properly equipped on a permanent basis. These are essential state functions, and cannot be divested or discharged through the creation of temporary cadres with varying degrees of state control. They necessarily have to be delivered by forces that are and personnel who are completely under the control of the State, permanent in nature, and appropriately trained to discharge their duties within the four corners of constitutional permissibility.
2. The conditions of employment of such personnel also have to hew to constitutional limitations. The instant matters, in the case of SPOs in Chattisgarh, represent an extreme form of transgression of constitutional boundaries.

WHETHER JUDICIARY IS STATE?

Suppose Judiciary passes a rule that only law graduates of NLU can be employed in higher Judiciary?
If you look at the Pradeep Kumar standard, is judiciary State?
Premchand Garg v Excise Commissioner AIR 1963 SC 996

Facts–

Issue–
Held–
Rule making power of court are legislative in character and hence they are subject to FR.
Mohd Arif v Registrar SC

Issue–

137 contains the power of court to review its decisions subject to rules made by SC under 125.
1. Whether court handing death penalty be challenged as violation of FR?

Held–

No. Article 21 makes exception for death penalty cases and death penalty cases cannot be decided by circulation but open hearing.
1. A Constitution Bench, by a 4:1 decision, held that judicial review of death penalty cases must be heard in open court by a bench of at least three judges rather than just by circulation, justifying that the right to life could be deprived only upon following a procedure that was ‘just’, ‘fair’ and ‘reasonable’.
Ujjam Bai v State of UP AIR 1962 SC 1621
1. Issue-Whether one can move SC against decision of Quasi-Judicial body?
2. Held-One two grounds-
  1. Decision is ultra-virus of the statute and hence violative of FR
  2. Decision was ultra-virus of Jurisdiction and hence violative of FR
In Narersh S. MIRAJKAR v. State of Maharastra [AIR 1967 SC 1],
1. It was decided that even if a Court is State, a writ under Article 32 can’t be issued to the High Court of competent jurisdiction against its judicial order because such order cannot be said to violate the Fundamental Rights.
2. What the judicial decision purports to do is to decide the controversy between the parties and nothing more.
Article 141-Laws declared by SC is binding on courts.
Naresh Shridhar MIRAJKAR And Ors vs State Of Maharashtra 1967

Facts–

In a suit for defamation against the editor of a weekly newspaper, filed on the original side of the High Court, one of the witnesses prayed that the Court may order that publicity should not be given to his evidence in the press as his business would be affected.
1. After hearing arguments, the trial Judge passed an oral order prohibiting the publication of the evidence of the witness. HC affirmed that decision.
2. A reporter of the weekly along with other journalists moved this Court under Art. 32 challenging the validity of the order. It was contended that:-
  1. (i) The High Court did not have inherent power to pass the order;
  2. (ii) The impugned order violated the fundamental rights of the petitioners under Art. 19(1) (a); and
  3. (iii) The order was amenable to the writ jurisdiction of this Court under Art. 32.

Held–

(Per Gajendragadkar C. J., Wanchoo, Mudholkar, Sikri, Bachawat and kainaswami, JJ.) :
1. As the impugned order must be held to prevent the publication of the evidence of the witness during the course of the trial and not thereafter and the order as passed to help the administration of justice for the purpose of obtaining true evidence in the case, the order was within the inherent power of the High Court. The High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course.
2. S.151, CPC, saves the inherent power of the High Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Such a power includes the power to hold a part of the trial in camera or to prohibit excessive publication of a part of the proceedings at such trial.
3. Just as an order passed by the Court on the merits of the dispute before it cannot be said to contravene the FRs of the litigants before the Court, so the impugned order, which is also a judicial order, cannot be said to affect the fundamental rights of the petitioners. It was directly connected with the proceedings before the Court inasmuch as the Court found that justice could not be done between the parties and that the matter before it could not be satisfactorily decided unless publication of the evidence was prohibited pending the trial. if incidentally, the petitioners were not able to report what they heard in Court, that cannot be said to make the impugned order invalid under Art.19(1)(a).
4. The High Court is a superior court of Record and it is for consider whether any matter falls within its jurisdiction or not. The order is a judicial order and if it is erroneous a person aggrieved by it, thougha stranger, could move this Court under Art.136and the order can be corrected in appeal;but the question about the existence of the said jurisdiction as well as the validityorpropriety of the order cannot be raised in writ proceedings under Art. 32 [Ujjam Bai v. State], referred to in Prem Chand Garg v. Excise Commissioner, U.P. [1963]
5. Per Shah J.
  1. The CPC contains no excessive publicity itself operates as an instrument of injustice, the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted. An order made by a court in the course of a proceeding which it has jurisdiction to entertain-whether the order relates to the substance of the dispute between the parties or to the procedure, or to the rights of other persons, is not without jurisdiction, merely because it is erroneous.
  2. Jurisdiction to exercise these powers which may affect rights of persons other than those who are parties to the litigation is either expressly granted to the Court by the statute or arises from the necessity to regulate the course of proceedings so as to make them an effective instrument- for the administration of justice. An order made against a stranger in aid of administration of justice between contending parties or for enforcement of its adjudication does not directly infringe any FR under Art. 19 of the person affected thereby, for it is founded either expressly or by necessary implication upon the nonexistence of the right claimed. Such a determination of the disputed question would be as much exempt from the jurisdiction of his Court to grant relief against infringement of a fundamental right under Art. 19, as a determination of the disputed question between the parties on merits or on procedure.
  3. In the matter of issue of a writ of certiorari against the order of any Court, in the context of the infringement of FR, even orders made by subordinate, such as the District Court or of subordinate Judge, are as much exempt from challenge in enforcement of an alleged fundamental right under Art. 19 by a petition under Art. 32 as orders of the High Court which is a superior Court of Record.
  4. It is not necessary to decide for the purpose of these petitions whether an order made by a High Court may infringe any of the rights guaranteed by Arts. 20, 21 & 22(1) and may on that account form the subject-matter of a petition under Art. 32. Art. 19, on the one hand and Arts. 20, 21 & 22(1) are differently worded. Art. 19 protects personal freedoms of citizens against state action except where the ‘action falls within the exceptions. Arts. 20, 21 & 22 impose direct restrictions upon the power of authorities.
6. Per Hidayatullah J. (dissenting):
  1. A Court which was holding a public trial from which the public was not excluded, cannot suppress the publication of the deposition of a witness, heard not in camera but in open Court, on the request of the witness that his business will suffer.
  2. The Chapter on FR indicates that Judges acting in their judicial capacity were not intended to be outside the reach of fundamental rights.
  3. The word “State” in Arts. 12 and 13 includes “Courts” because otherwise courts will be enabled to make rules which take away or abridge fundamental rightsand a judicial decision based on such a rule would also offend fundamental rights.
  4. A Judge ordinarily decides controversies between the parties, in which controversies he does not figure, but occasion may arise collaterally where the matter may be between the Judge and the fundamental rights of any Person by reason of the Judge’s action.
  5. Even assuming the impugned order means a temporary suppression of the evidence of the witness the trial Judge had no jurisdiction to pass the order. As he passed no recorded order the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Art. 32.
  6. There may be action by a Judge which may offend the fundamental rights under Arts. 14, 15, 19, 20, 21 and 22 and an appeal to this Court will not only be not practicable but will also be an ineffective remedy and this Court can issue a writ to the High Court to quash its order, under Art. 32 of the Constitution.
  7. Since there is no exception in Art. 32 in of the High Courts there is a presumption that the High Courts are not excluded.
  8. Even with the enactment of Art.226 the power which is conferred on the High Courts is not in every sense a coordinate and the implication of reading Arts. 32, 136 and 226 together is that there is no sharing of the powers to issue the prerogative writs processed by this Court.
  9. Under the total scheme of the Constitution the subordination of the High Courts to the Supreme Court is not only evident but is, logical.

Per Sarkar-

The impugned order does not violate the FR of the petitioners to freedom of speech and expression conferred by Art. 19(1)(a)If a judicial tribunal makes an order which it has jurisdiction to maim by applying a law which is valid in all respects, the order cannot offend a fundamental right. An order is within the jurisdiction of the tribunal which made it, if the tribunal had jurisdiction to decide the matters that were litigated before it and if the law which it, applied in making the order was a valid law. A tribunal having this jurisdiction does not act without jurisdiction if it makes an error in the application of the law. The impugned order is a judicial order within the jurisdiction of the Judge making it even though it restrained the petitioners who were not. parties to the proceedings. This Court has no power to issue a certiorari to the HC. When the HC has the power to issue the writ of certiorari, it is not, according to the fundamental principles of certiorari an inferior court or a court of limited jurisdiction. The Constitution does not contemplate the HC to be inferior courts so that their decisions would be liable to be quashed by a writ of certiorari issued by the SC.
Per Bachawat-
1. The law empowering the High Court to restrain the publication of the report of its proceedings does not infringe Art. 19(1) (a), because it affects the freedom of speech only incidentally and indirectly.
2. The High Court has jurisdiction to decide if it could restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought. If it erroneously assumes a jurisdiction not vested in it, its decision may be set aside in appropriate proceedings, but the decision is not open to attack under Art. 32 on the ground that it infringes the fundamental right under Art. 19(1)(a). If a stranger is prejudiced by an order forbidding the publication of the report of any proceeding, his proper course is only to apply to the Court to lift the ban.
It is within the Jurisdiction of HC
The only writ that can be directed against court under S.32 is writ of certiorari which be passed only when a judicial order is passed without jurisdiction.
HC is a court of record, and has power to determine its own Jurisdiction.
Writ of certiorari will not apply to HC if the order is made under valid Jurisdiction as HC is a-
1. Superior Court
2. Has more wider power than SC
3. Court of Record-Power to decide its own Jurisdiction
4. It’s not an inferior court merely because appeal lies from its order. Other wide tribunals whose orders are non-appealable will be Supreme Courts.
Judgement by itself cannot violate FR, as it only determines controversies between parties. They may make error in deciding the fact and law but that is subjected to appeal to Higher courts and not to be challenged under S.32. (Positivist approach) Ignores Article 141 that court also declares law.
When petitioner said that he cannot appeal as he is not a party to the suit, Justice Gajendragadkar said that in such a case you can reach SC via Article 136.

Hidayatullah–

Just because there lies appeal, does not mean that a judicial can never breach fundamental right.
1. Judiciary is State for the purpose of Article 12. Its decision may contravene FR.
Mirajkar stands for two proposition-
1. A Judicial order cannot violate FR
2. A writ of certiorari can only be issued against an inferior court. Both HC and SC are superior court.
In A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531], 7J

Facts–

Issue-Whether order passed by SC violates Article 20, 21 right of petitioners?

Held–

It was held that the Court could not pass an order or issue a direction which would be violative of Fundamental Rights so, it can be said that the expression “State includes judiciary also.
1. If we include judiciary in “State”, then it will lead to multiplicity of proceedings by raising violation of Fundamental Rights, first in appeal and then in writ proceedings (negative implication of inclusion of Judiciary in State).
2. Another point is that, however, by inclusion of Judiciary in Article 12, the Court will become obliged to enforce DPSP also as Article 36 will bind then as much as Legislature and Executive.
  1. But as a guardian of the Constitution, the Court must be duty bound to give effect to DPSP as to Fundamental Rights irrespective of their inclusion of State.
3. We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner.
4. When attention of the Court is drawn the Court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power as a power of review to correct the original mistake. No suitor should suffer for the wrong of the court.
5. Review of court happens under Article 137.
6. A judicial order can violate FR, but writ will not lie against it but SC under 137 can review that Judgement.
7. Review always happens in case of same court.
8. Antulay proposition-
  1. Judicial Decision can violate FR, but no writ lies against it.
Triveni Ben v State of Gujarat AIR 1989 SC 1335

Issue–

Whether an inordinate delay in execution of death sentence, does that violate Article 20?

Held–

Yes. But delay in executive process and not the delay in Judicial process.
1. If the death sentence is confirmed by HC and SC takes 8 years to decide that and 4 years is taken by executive to reject mercy petition. Only executive delay of 4 years will be taken into account.
2. Under Art. 32 u cannot revisit court for violation of FR.
Shatrughan Chauhan v Union of India
1. The Court commuted the death sentences of 15 convicts whose mercy petitions had been rejected by the President on the ground of mental illness. The Court laid down guidelines for commutation and evaluated various supervening circumstances: prolonged delay in execution of a death sentence, insanity, mental illness/schizophrenia of the convict.
2. The Court stressed that no exhaustive guidelines or outer time limits could be prescribed for disposing mercy petitions and the analysis must proceed on a case-by-case basis, entailing that the court must step in when the delays were “unreasonable, unexplained and exorbitant.
3. In Mohd. Arif v The Registrar SC
  1. A Constitution Bench, by a 4:1 decision, held that judicial review of death penalty cases must be heard in open court by a bench of at least three judges rather than just by circulation, justifying that the right to life could be deprived only upon following a procedure that was ‘just’, ‘fair’ and ‘reasonable’.
Rupa Ashok Hurra v Ashok Hurra 2002 4 SCC 338 5J
1. In our view, on principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiorari to superior courts. Thus, it follows that a High Court cannot issue a writ to another High Court; nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme.
2. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the constitution.
3. Writ of certiorari cannot be issued against same or higher bench.
4. Recourse of Article 32 can be taken only in exceptional cases.
5. SC can also exercise its inherent power, but only in case violation of PNJ
Problem if Judiciary is not State under 12-
1. Absurd as the body that is enforcing the FR itself does not abide by it.
2. If State can’t discriminate on the basis of conditions mentioned in Article 14, 15 and 16, should we let Judiciary discriminate on these basis? This is what at stake here.
3. The moment u say that Judiciary is not state means that Judiciary does not have any obligation of Article 14.
4. Judiciary is conflating the obligation to obey FR and obligation to enforce FR.
5. Art 32 says that “right to move to SC by appropriate proceedings” It does not say that it can only be through review, 136, etc. It could be recourse of Art. 32 as well.
6. Though these cases are consistent in an of themselves but later decisions are also conflicting.
7. Difference between obligation and enforcement of that obligation-Article 37, 32
8. We assumed that Article 32 is a self-standing principle. Appropriate proceedings may be different in different cases. But if many of the avenues such as 136, 137 etc are not available, Article 32 recourse is available in the form of a residuary avenue. If you say that Judiciary is not state, then you cannot move SC on the basis of Article 32, in case other avenues are not available.
  1. So Judiciary is a State, its decision can violate FR especially 20, 21 and 22.
  2. You put an end to the apprehension of infinite loop of proceedings by saying “appropriate proceedings” and keeping 32 as a residuary in exceptional cases.
9. This debate because many rights are directed against state
10. Rights Holder-Duty Bearer. DH has an obligation towards RB. We also have horizontal application of rights (Art.17, 22, 24 etc) Our constitution is one of the first to recognize this principle.
SC bar association v UOI 1998 4 SCC 409
1. SC suspended a lawyer under court of contempt and prohibited him for practicing for 3 years.
2. Challenged that SC did not have power.
3. Court did not go into whether FR has been violated. But set aside the order.
State of Kerala v NM Thomas 1976 2 SCC 310 7J
1. Not only is the DPSP embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the court when it makes a decision as the Court is also ‘state’ within the meaning of Article 12 and makes law even though interstitially from the molar to the molecular.
Keshavananda Bharti (Mathew J dissenting)
1. The definition of the word ‘State’ both for the purpose of Part III and Part IV is the same. …That judicial process is also “State Action” seems to be clear. Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order. In his dissenting judgment in Naresh v. State of Maharashtra [1966] 3 S.C.R. 744 Hidayatullah, J. took, the view. I think rightly that the judiciary is also “State” within the definition of the word “State” in Article 12 of the Constitution.…If convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention of the rights conferred by Part III” for the purpose of enabling the person to file a petition under Article 32 to quash the judgment, I can see no incongruity in holding, when Article 37 says in its latter part. “it shall be the duty of the State to apply these principles in making laws”, that judicial process is ‘state action’ and that the judiciary is bound to apply the Directive Principles in making its judgement.
Santosh Bariyer v State of Maharashtra 2009 6 SCC 498
1. It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.

HORIZONTAL & VERTICAL APPLICATION OF FUNDAMENTAL RIGHTS

In Vertical application of FR, Duty Bearer is State and Right Holder is the citizen
In Horizontal application of FR, Duty Bearer is non-state actor and Right Holder is the non-state actor and obligation is also on non-state actor.
1. If someone has a right, then others have a duty in a sense not to violate that individual.
Initially the assumption was that Rights in Part III of Indian Constitution have only vertical application.
1. PD Shamdasani v Central Bank AIR 1952 SC 59
  1. CBI was a private bank and petitioner had some share in the bank and also had some debts and the shares were in the form of lien.
  2. He went to SC under 32 claiming that his right to property under 19(f) is being violated.
  3. SC said that Part 3 rights are enforceable only against state action.
Two types of obligation-
1. Negative Obligation-Don’t violate rights
2. Positive Obligation-Take affirmative steps that rights are not violated.
  1. Right to Food.
Indirect Horizontality-That the state has an obligation to not only violate the Rights of non-state actor but also the obligation to protect the right from being violated. Relationship between the two NSAs should be such that rights of one are not violated.
1. Consumer Education and Research Center v UOI 1995 3 SCC 42
  1. State has an obligation that health of workers is preserved.
2. Vishakha Guidelines.
3. Shakti Vahini v UOI 2018
  1. The question is about Khap Panchayat. Whether Khap Panchayat standing in way of adults is violation of people’s right under Article 19 and 21?
  2. If the State has an obligation under 19(1)a and 21, that duty involves obligation to protect those who exercise this right.
4. Individuals can structure their relations however they want, but state cannot enforce that relation if that violate FR.
  1. Two people enter into a contract of slavery. It is fine as long as it remains between them. But if wants to legally enforce that, that will not happen. (Section 23-Contract Act-public policy)
Zoroastrian Co-operative Housing Society Ltd v District Registrar, Co-operative Societies 2015

Facts–

The bye-laws of the Society restricted the membership to Parsi origin community only.
1. The Gujarat Co-operative Societies Act, 1961: Chapter II, Section 4 clearly envisaged that a society shall not be registered, if in the opinion of the Registrar its working is likely to be in contravention of public policy. Registrar can also order amendment of any bye-law.
2. Respondent 2 (a member of society) applied to society for permission to demolish bungalow and to construct a commercial building in its place. Rejection of application by Society stating that bye laws of society did not permit commercial use of land. Respondent 2 subsequently applied to society for permission to demolish bungalow and for construction of residential flats to be sold to Parsis. Application allowed by society. Negotiations entered into by Respondent 2 with Respondent 3 a builder’s association in violation of restriction on sale of shares or property to a Non Parsi. Challenged by Society by filing a case before Board of Nominees. Board held that society could not restrict its membership only to Parsi Community. Tribunal held that bye law restricting membership to Parsis was a restriction on right to property and was violative of Article 300A.
3. The Gujarat HC held that–A bye-law of the Petitioner Society providing that a member cannot sale or transfer his interest to a non-Parsi is void. A Co-operative Society is the creation of statute- so the rules of the co-operative society must confirm the law and statutory provisions- Parsis cannot claim that being a minority community membership of a Co-operative Housing Society to non-Parsis can be denied.
  1. A bye-law restricting membership in a co-operative society, to a particular denomination, community, caste or creed was opposed to public policy.

Issue–

Held–

Arguments of the Society-
1. Freedom of association under Article 19
2. Society is not a state under Article 12 and thus state obligations are not binding on them.
3. As a minority that have right to preserve their culture-Article 29.
4. Allowing appeal court held that when a person accepts membership in a cooperative society by submitting himself to its bye laws and places on himself a qualified restriction on his right to transfer property by stipulating that same would be transferred with prior consent of society to a person qualified to be a member of society, it could not be held to be an absolute restraint on alienation offending Section 10 of Transfer of Property Act. Hence finding of High Court that restriction placed on rights of members of a society to deal with property allotted to him was invalid as an absolute restraint on alienation, held unsustainable and set aside.
5. The Constitution no doubt provides that in any State action there shall be no discrimination based either on religion or on sex. But Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract.
6. Normally, that policy has to be searched for within the confines of that statute. What one has to bear in mind is that the statute reflects the policy of the Legislature in respect of the subject matter dealt with thereunder. When the Gujarat Cooperative Societies Act, 1961 was enacted, it could not be taken that the Legislature was unaware of the fundamental rights of citizens enshrined in Articles 19(1)(d) and (g) of the Constitution of India.
  1. But the Legislation, in aid of the cooperative movement and in the context of the rights available to citizens under Article 19(1)(c) of the Constitution of India, imposes only certain restrictions as reflected by the Act, the Rules and the Bye-laws of the particular society. The Acts specifically gave sanctity to the bye-laws of a Society duly approved by the authorities under the Act. The expression ‘public policy’ in the context of Section 4 of the Act can be understood only as being opposed to the policy reflected by the Cooperative Societies Act.
  2. (Brojo Nath Ganjuli case said otherwise)
7. Since, the statute does not restrict bye-law confining membership to a particular community, such bye-law cannot be said to be opposed to public policy.
8. In Damyanti Naranga v Union of India 1971 3 SCR 840, this Court, discussing the scope of the right to form an association guaranteed by Article 19(1)(c) of the Constitution of India, stated that the right to form an association necessarily implies that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association.
  1. It is emphasized that the principle recognized in the Damyanti’s case (supra) was not applicable to a co-operative society since it is a creature of a statute, the Cooperative Societies Act and that the rights of its members could be abridged by a provision in the Act.
9. In Daman Singh v State of Punjab 1985 3 SCR 580, this Court held that when a co-operative society is governed by the appropriate legislation it will be subject to the intervention made by the concerned legislation, it only meant that a legislative provision in the Act can be introduced for the purpose of eliminating a qualification for membership based on sex, religion or a persuasion or mode of life. But so long as there is no legislative intervention of that nature, it is not open to the court to coin a theory that a particular bye-law is not desirable and would be opposed to public policy as indicated by the Constitution.
  1. The Constitution no doubt provides that in any State action there shall be no discrimination based either on religion or on sex. But Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract.
10. A co-operative society is not a state unless the tests indicated in Ajay Hasia are satisfied. But what about Pradeep Kumar Biswas test and Zee Telefilm case?
  1. There is no case here that the appellant society satisfies the tests laid down by Ajay Hasia so as to be considered to be a state within the meaning of Article 12 of the Constitution.
  2. The fundamental rights in Part III of the Constitution are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution.
  3. It is not possible to argue that a person has a fundamental right to become a member of a voluntary association or of a co-operative society governed by its own bye-laws.
11. No one can claim any right to be associated with someone. But here the case is brought by Society to exclude someone.
12. Shelly v Kramer- Individuals can enter into racially restrictive contracts but that will not be enforceable by law.
13. Whether there is a differential obligation in cases of Majority and Minority?
Charu Khurana v Union of India 2013

Facts–

Here, a female Petitioner was refused membership as a make-up artist the Cine Costume Make-up Artists and Hair Dressers Association, whose rules only allowed men to be make-up artists. The Court held that the Petitioner could not be denied membership, as discrimination on grounds of gender was a clear violation of her right to equality and a denial of “her capacity to earn her livelihood which affects her individual dignity.” Interestingly, the Court applied this requirement of non-discrimination on the Association, a private entity, and held that any clause in the bylaws of a trade union calling itself an Association cannot violate Articles 14 and 21. This opinion allows for the horizontal application of fundamental rights and breaks away from its earlier restrictive application in Zoroastrian Co-operative Housing Society Ltd.
1. Petitioner No. 1 is a Hollywood trained Make-up Artist and Hair Stylist submitted an application to the Respondent No. 5-Association to issue her a membership card as a Make-up Artist and Hair Stylist. She was not allowed to have a card and she was compelled to delete the word Make-up Artist from her application and to apply only as a Hair Dresser. She sent a complaint to many authorities that she was being deprived to work as a make-up artist and in her complaint she mentioned that when she was found working as a make-up artist, she was slapped with a fine of Rs. 26,500/-. Being aggrieved by the action, the Petitioner No. 1 filed a complaint with the 6^th Respondent, Federation of Western India Cine Employees (for short, “the Federation”). The Respondent No. 6, in its turn, sent a communication on 10.07.2009 requiring the 5th Respondent to explain the reasons for refusal of membership of the Petitioner No. 1 as a make-up artist. The other female artists also sent similar complaints to the 6th Respondent.

Issue–

Whether the female artists, who are eligible, can be deprived to work in the film industry as make-up man and only be permitted to work as hair dressers, solely because the Association, the Respondent No. 5 herein, which is controlled by the Trade Unions Act, 1926, has incorporated a clause relating to this kind of classification and also further stipulated that a person to work must be a resident of Maharashtra for a period of five years and nonchalantly stood embedded on its stand?

Held–

A Supreme Court Bench comprising of Dipak Misra and U.U. Lalit, JJ held that the bye-laws of (‘Association’) prohibiting women from practising as make-up artists and requiring residency for over 5 years in Maharashtra violate fundamental rights enshrined in the Constitution as well as statutory provisions. The Court directed the bye-laws to be quashed, and the police administration to prevent any harassment of female artists by the Association.
1. First, we shall take up the issue of discrimination on the ground of gender.
  1. Article 39A in Part IV of the Constitution that deals with DPSP, provides that the State shall direct its policies towards securing that the citizens, men and women equally, have the right to adequate means of livelihood. Clause (d) of the said Article provides for equal pay for equal work for both men and women and Clause (e) stipulates that health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength.
  2. Article 51-A postulates that it shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and the spirit of common brotherhood, to safeguard public property and to abjure violence.
    1. In Minerva Milts Ltd. v. Union of India (1980) 3 SCC 625, the Constitution Bench has found that the FRs and the DPSPs are the two quilts of the chariot in establishing the egalitarian social order.
    2. In Society for Unaided Private Schools of Rajasthan v. Union of India and Anr.(2012) 6 SCC 1, it has been held that the Court is required to interpret the FRs in the light of the DPSPs.
    3. Article 37 makes the directive principles of State policy fundamental in the governance of the country and provides that it shall be the duty of the State to apply these principles in making laws.
    4. With the development of law, even certain matters covered under this Part relating to directive principles have been uplifted to the status of fundamental rights, for instance, the right to education.
  3. Having referred to the aforesaid provisions of the Constitution, and taking note of the submissions, we may presently refer to Articles 14, 19(1)(g) and 21 of the Constitution of India.
  4. At this stage, it is seemly to note that the Association is not a State Under Article 12 of the Constitution of India or may not be amenable to writ jurisdiction Under Article 226 of the Constitution of India, but its constitution and the bye-laws which have been accepted/ratified by the Registrar of Trade Unions, who have been authorised by the competent Government cannot violate the mandate of the Act or any of the constitutional commands.
2. Having regard to the aforesaid legal exposition and factually expose, the legal provisions of the Act are to be scanned.
  1. Section 5 of the Act provides for application for registration.
  2. It stipulates that every application for registration of a trade union shall be made to the Registrar, and shall be accompanied by a copy of the Rules of the trade unions.
  3. It is the duty of the Registrar of the Trade Unions to see that no rule is framed by any trade union which is inconsistent with the Act.
  4. Section 6 stipulates that a trade union shall not be entitled to registration under the Act, unless the executive thereof is constituted in accordance with the provisions of the Act and the rules thereof. It also provides for certain aspects some of which are, the whole of the objects for which the trade union has been established and the whole of the purposes for which the general funds of the Trade Union shall be applicable. Section 10 deals with the cancellation of registration.
  5. The Association has its own bye-laws.
    1. Clause 4 of the bye-laws reads that Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association.
    2. Clause 6 deals with admission of new members. It reads that any person desiring to become the member of the Association who has attained the age of majority of 18 and who possess a good moral character shall send an application in prescribed form and duly recommended by two members with its prescribed fees. Applicant should have been a resident of Maharashtra at least for 5 years.
  6. These bye-laws have been certified by the Registrar of Trade Unions in exercise of the statutory power.
  7. Clause 4, as is demonstrable, violates Section 21 of the Act, for the Act has not made any distinction between men and women.
    1. Had it made a bald distinction it would have been indubitably unconstitutional.
  8. The legislature, by way of amendment in Section 21A, has only fixed the age.
  9. It is clear to us that the clause, apart from violating the statutory command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex.
  10. Such discrimination in the access of employment and to be considered for the employment unless some justifiable riders are attached to it, cannot withstand scrutiny.
  11. When the access or entry is denied, Article 21 which deals with livelihood is offended.
  12. It also works against the fundamental human rights. Such kind of debarment creates a concavity in her capacity to earn her livelihood.
3. The state functionary cannot use state machinery to give sanction to an arrangement that violates FR.

Domicile Issue-

In Pradeep Jain v. Union of India (1984) 3 SCC 654, it has been held thus:
1. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B.
2. It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed.
3. It will be clear from what has been held by the three-Judge Bench of this Court in Magan Mehrotra v. Union of India that no preference can be given to the candidates on the basis of domicile to compete for the institutional quota of the State if such candidates have done their MBBS course in colleges outside the State in view of the decisions of this Court in Pradeep Jain v. Union of India. Hence, Clauses 2 and 3 of the eligibility criteria in the Information Bulletin are also violative of Article 14 of the Constitution.
4. In the case at hand, it does not relate to reservation but relates to having access to employment. Here, as we find the concept of domicile, as stipulated, has no rationale.
5. As the clauses relating to the membership and the domicile, namely, Clause 4 and 6, are violative of the statutory provisions and the constitutional mandate and taking further note of the fact that the Registrar would have been, in normal circumstances, directed by us requiring the trade union to delete the clauses, we quash the said clauses and further direct that the Petitioners shall be registered as members of the 5^thRespondent within four weeks. It will be the obligation of the Registrar of Trade Unions to see that they are registered as make-up artists. If the Association would create any hurdle, it will be obligatory on the part of the police administration to see that the female make-up artists are not harassed in any manner whatsoever, for harassment of a woman is absolutely unconscionable, unacceptable and intolerable.
Interestingly, the Court applied this requirement of non-discrimination on the Association, a private entity, and held that any clause in the bylaws of a trade union calling itself an Association cannot violate Articles 14 and 21. This opinion allows for the horizontal application of fundamental rights and breaks away from its earlier restrictive application in Zoroastrian Co-operative Housing Society Ltd.
If State is delegating its duties to private contractors and if the contractors violate FR, can state be held accountable?

PUDR v UOI 1982

Asiad Workers case
1. If you are not providing minimum wages, you are violating FR.
2. It is the principle of equality embodied in Article 14 of the Constitution which finds expression in the provisions of the Equal Remuneration Act 1946 and if the Union of India, the Delhi Administration or the Delhi Development Authority at any time finds that the provisions of the Equal Remuneration Act 1946 are not observed and the principles of equality before the law enshrined in Article 14 is violated by its own contractors, it cannot ignore such violation and sit quiet by adopting a non-interfering attitude and taking shelter under the excuse that the violation is being committed by the contractors and not by it. If any particular contractor is committing a breach of the provisions of the Equal Remuneration Act 1946 and thus denying equality before the law to the workmen, the Union of India, the Delhi Administration or the Delhi Development Authority as the case may be, would be under an obligation to ensure that the contractor observes the provisions of the Equal Remuneration Act 1946 and does not breach the equality clause enacted in Article 14.
Our Rights can be violated by private actors as well.

ARTICLE 14-EQUALITY BEFORE LAW

Article 14-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Why equal, what makes us equal?
1. We are equal by the virtue being Human-the quality being Human which is common amongst all of us.
2. Political Philosophy
Theology-God made us equal
Post-enlightenment-Capacity to think about one’s own welfare present in all human beings. Equal moral worth that all of us have.
1. This equality does not mean that we are all same identical
2. We can be different but equal
3. Equality has been constitutive feature of justice.
4. Many people say equality is a hollow idea.

Equality of whom?

Equality of what?
Aristotle-Treat like alike, treat unlikes differently.
1. But it does not tell us what is alike and what is different.
2. Not every differentiation we make means discrimination.
Result of hard won political gains.
Distinction based on morally arbitrary criteria such as caste, religion, race, sex. Once you have disregarded these criteria, then you are only left with merit and talents.
1. But merit itself is the function of many of these morally arbitrary criteria.
2. Merit itself is the result of one’s socio-economic circumstances.
3. Merit is based on accidents of birth and privileges.
If you go by formal equality, that will entrench dominance.
Equal Treatment-treating like people alike.
1. That people should be treated same.
2. Equally good or equally bad.
3. Palmer v Thomson-A city has two swimming pools-for blacks and whites. When challenged on constitutional grounds, the city admin got shut down all swimming pools.
4. Khushal Judgement-SC said 377 applies on everyone. As long as you are treating everyone badly, there is no discrimination.
5. Treating like alike, require some standards, framework.
6. Problems which generally emerge is-I have been treated like X, though I am like Y.
  1. Grant v South West Trains
    1. A person was employee of West Trains and enjoyed certain benefits but not her same-sex partner. She claimed to be treated at par with heterosexual couple.
7. Bhiku Parekh-If minorities want to be treated like the majority, they have to mould themselves like the majority.
8. Catharine Mackinon– Equality and consistency requires a standard- ‘equal to whom’?
9. Sandra Feidman– We talk about ethnic minority not ethnic majority because what the majority is considered universal.
10. One should not be treated detrimentally compared to others similarly situated.
11. In International development discourse, underlying is an assumption is what development looks like.
  1. Countries which concurred other countries.
Difference between equality before Law and equal protection of law-not much substantiated

THE TWO DOCTRINES

Doctrine of Reasonable Classification

Indian concept of Equality is based on Aristotlian concept of-Treating like people alike.
All people who are similarly situated should be treated alike in terms of privileges conferred and liabilities.
This classification should be based on characteristics found in the persons grouped together and not those outside the group.
It must have some reasonable relation with the object of the law.
Any law has to meet two conditions-
1. Classification based onINTELLIGIBLE DIFFERENTIA which distinct between people grouped together and those who are not.
  1. Intelligible differentia is the quality or characteristics which differentiate two group.
    1. The basis for classification should be clear. That who is included and who is not.
      1. A law differentiating between men and women
    2. There was no such differentiation in case of 377-what is intercourse against the order of nature.
    3. Contract Act says-minors cannot enter into contract. Differentiation between minors and majors.
    4. Can a minor criticise that?
      1. The legislature cannot do classification to such exactness. No delusive exactness Classification is justified as long as it not blatantly/palpably arbitrary.
2. That differentia should have a RATIONAL NEXUS with the OBJECT SOUGHT TO BE ACHIEVED.

Doctrine of Arbitrariness

Basis of classification should not be arbitrary.
Article 14 prohibits class discrimination.
There should be no discrimination within a class.
Person similarly situated not to be discriminated.
Widely discussed in the EP Royappa Case and McDowell Case

Doctrine of Proportionality

4 Step Proportionality Test

Legitimate Aim-

Grimm says that any aim is legitimate as long as is not prohibited in the Constitution

Reasonable Test does not look at Legitimate Aim.

Suitability

Aim and measures are connected. Means and Ends are connected.

Requirement of Evidence-Quantifiable Data? Expert Opinion? In Aadhar, the court just relied on UIDAI chairman powerpoint presentation?

Necessity

The measure is necessary and there are no other less restrictive measures/ways to achieve that. It is not a burden on State but requirement by constitution.

Proportionality

Is the restriction still worth the benefit. Cost-Benefit analysis?

Grimm says that you have to check the loss to the rights if the aim is achieved or the loss to the aim of the right is achieved.

Standards of Scrutiny Tests

We can have different type of situations-

Classification by Legislature

Chiranjit Lal Sahu

Legislature may leave it to the executive

Anwar Ali Sarkar

Kathi Raning Sahu
Question is if the law provide enough guidance to the executive to carry out the classification.
In some cases the law is fine, but the executive classifies it in a way which does not has a rational nexus with the object sought to be achieved.

CHARANJIT LAL CHOWDHURY v THE UNION OF INDIA 1950

Facts–

The Governor-General of India, finding that on account of mismanagement and neglect a situation had arisen in the affairs of the Sholapur Spinning and Weaving Company Ltd. which had prejudicially affected the production of an essential commodity and had caused serious unemployment amongst a certain section of the community, and that an emergency had thereby arisen which rendered it necessary to make special provision for the proper management and administration of the said company, promulgated an Ordinance, which was subsequently reenacted in the form of an Act of the Legislature called the Sholpur Spinning and Weaving Company (Emergency Provisions) Act, 1950, the net result of which was that the Managing Agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to appoint new directors, the rights of the shareholders of the company were curtailed in the matters of voting, appointment of directors, passing of resolutions and applying for winding up, and power was also given to the Government to further modify the Indian Companies Act in its application to the company; and in accordance with the provisions of the Ordinance new directors were appointed by the Government.
A shareholder of the company made an application under Art. 32 of the Constitution for a declaration that the Act was void and for enforcement of his fundamental rights by a writ of mandamus against the Central Government, the Government of Bombay and the directors, restraining them from exercising any powers under the Act and from interfering with the management of the company, on the ground that the Act was not within the Legislative competence of the Parliament of the Parliament and infringed his fundamental rights guaranteed by Arts. 19 (1) (f), 31 and 14 of the Constitution and was consequently void under Art. 13.

Issue–

Held–

Kania CJ, Fazl Ali, Mukherjia and Das JJ.-that the impugned Act did not infringe any fundamental right of the petitioner under Art. 31 (1), as if did not deprive the company or the petitioner of any property save under authority of law.
1. That though the Legislature had proceeded against ONE COMPANY ONLY and its shareholders, inasmuch as even one corporation or a group of persons can be taken to be class by itself for the purposes of legislation, provided there is sufficient basis or reason for it and there is a strong presumption in favour of the constitutionality of an enactment, the burden was on the petitioner to prove that there were also other companies similarly situated and this company alone had been discriminated against, and as he had failed to discharge this burden the impugned Act cannot be held to have denied to the petitioner the right to equal protection of the laws referred to in Art. He and the petitioner was not therefore entitled to any relief under Art. 32.
2. Per Patanjali Sastri J (Dissenting)–As the impugned Act plainly denied to the shareholders of this particular company the protections of the law relating to incorporated Joint Stock Companies as embodied in the Indian Companies Act. it was Prima facie within the inhibition of Art. 14; and, even though when a law is made applicable to a class of persons or things and the classification is based on differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing. Since the impugned Act selected a particular company and imposed upon it and its shareholders burdens and disabilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its undertaking no question of reasonable classification arose and the Act was plainly discriminatory in character and within the constitutional inhibition of Art. 14.
3. The principles laid down in that case may be summarized as follows-
  1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
  2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
  3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment. [1950] S.C.R. 869.
  4. The principle of equality does not take away from the State the power of classifying persons for legitimate purposes.
  5. Every classification is in some degree likely to produce some inequality, so mere production of inequality is not enough.
  6. If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
  7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.
4. Professor Willis, dealing with the 14th Amendment of the US Constitution, which guarantees equal protection of the laws, sums up the law as prevailing in that country in these words: “The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.”
5. In UK there used to be practice, Parliament used to passed a bill of tender in case of certain cases and confiscate.
6. Having a single person law is per se not prohibited under Article 14. The burden lies on the person to prove that it is arbitrary.
7. Dissent say that we have to be very very cautious with the single person classification.
8. Three points made by Chiranjit Sahu-
  1. Classification must be Reasonable
  2. Based on real and substantial distinction bearing a just relation with the object sought to be achieved.
  3. Should Not be arbitrary and should be without substantial basis.
  4. SUCH CLASSIFICATION CAN BE MADE FOR SINGLE PERSON AS WELL.
Ameerunnissa Begum v Mahboob Begum AIR 1953 SC 91
1. A nawab died in Hyderabad. Three women claimed to be his wife and claimed inheritance. Nizam passes a law, dismissing the claim of two other women and entitled only Ameerunnissa for inheritance.
2. HC strikes down the law.

SC said-

In ChiranjitLal’scase, it is to be noted, the circumstances were somewhat exceptional. The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community, and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social, political and economic interest of the community as a whole.….In the case before us …[t]he legislation … denies to these specified individuals a right to enforce their claim in a court of law, in accordance with the personal law that governs the community to which they belong.
1. They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile and discriminatory legislation can be supported.
2. It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights.The only purpose of the legislation, as appears from the preamble, was to end certain private disputes.
3. The continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such unusual nature as would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession dispute.
This case curtailed the application of Chiranjit case for single person classification except in very exceptional case.
Ram Prasad Narayan Sahi v State of Bihar AIR 1953 SC 215
1. A princely state was under the control of wards. The court rents out the property to some people at a lower rate than the rate it was given to everybody else.
2. Bihar legislature passed a law targeting these two people.
3. Court says that there is no exceptional fact. This is like any other legal dispute. No rationale for treating these people differently than everyone else. No larger public purpose.
4. The dispute here, is a legal dispute pure and simple between two private parties. What the Legislature has done is to single out these two individuals and deny them the right which every Indian citizen possesses to have his rights adjudicated upon by a judicial tribunal in accordance with the law which applies to his case. The meanest of citizens has a right of access to a court of law for the redress of his just grievances and it is of this right that the appellants have been deprived by this Act. It is impossible to conceive of a worse form of discrimination than the one which differentiates a particular individual from all his fellow subjects and visits him with a disability which is not imposed upon anybody else and against which even the right of complaint is taken away.
P Venugopal v UOI 2008 5 SCC 1
1. P Venugopal was director of AIIMS and had very public dispute with Health Minister.
2. Health minister tried to terminate his employment prematurely. HC strikes down that order.
3. Parliament passes a law reducing the tenure of director of AIIMS.

SC Held-

A person is being singled out for premature termination without any question of his being justifiably treated as a Member of a separate and distinct class on any rational basis, any question of intelligible differentia having a nexus to the object of classification cannot arise. It was contended by Mr. Jaitley that in reality there is no legislation in respect of any class but there is legislation in respect of an individual, a living human being requiring him to move out of office.
1. There was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. Such an impermissible over classification through a one man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of “NAKED DISCRIMINATION” in our democratic civillized society governed by Rule of Law and renders the impugned proviso as void, ab initio and unconstitutional.
State of Bombay v F.N. Balsara 1951

Facts–

The Bombay, Prohibition Act, which prohibited sale and possession of liquors in the state, was challenged on the ground that it incidentally encroached upon import and export of liquors across custom frontier-a central subject. It was contended that the prohibition, purchase, use, possession and sale of liquor will affect its import. The court held that Act valid because the pith and substance of the Act fell under the State List and not under the Union List even though the Act incidentally encroached upon the Union Powers of Legislation.

Contention

HC held that if you look at the object of prohibition in general, this differentiation makes no sense.

Held–

Section 39 of the Act which empowers the Provincial Government to permit the use or consumption of foreign liquor on cargo boats, warships and troopships and in military and naval messes and canteens does not contravene Art. 14 of the Constitution. inasmuch as the relaxation of the general law in respect of the persons contemplated by the section is not arbitrary or capricious but is based on a reasonable classification.
1. Affirms Chiranjit Lal Chowdhury v Union of India.
2. I find therefore nothing wrong prima facie in the legislature according special treatment to persons who form a class by themselves in many respects and who have been treated as such in various enactments and statutory provisions.
  1. They have their own tradition, rules and life aimed at maintaining their morale and discipline.
3. In my opinion, therefore, Section 39, in so far as it affects the military and naval messes and canteens, warships and troop: ships, cannot be held to be invalid.
4. So far as the cargo-boats are concerned, it was contended on behalf of the petitioner that no rational differentiation could be made between them and the passenger boats, and there was no conceivable ground for granting exemption or concession of any kind to the former.
5. Here again, we cannot assume that the legislature has proceeded arbitrarily.
6. The cargo-boats being slower boats have to be on the sea for long periods, the number of persons affected by the exemption is comparatively small, and they are mostly sojourners who stay at the port for a short time and then go away.
7. These considerations may well have induced the legislature to show some concession to them, and we cannot say that these are irrelevant considerations. The provision relating to exemption of cargo-boats should therefore be held to be valid.
8. This case has been overruled and Synthetics And Chemicals Ltd. And Others v. State Of U.P. And Others, MANU/SC/0595/1989
9. SC looked at the objection of the section and not the law.
10. The court has a huge amount of leeway in determining the purpose.
11. Reasonableness lies in the eyes of beholder. Often based on male norm.
12. In some cases, court has said that object of the legislation should also be satisfied.

THE STATE OF WEST BENGAL v ANWAR ALI SARKAR 1952 7J

Facts–

The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it denied to the respondent the equal protection of the laws enjoined by article 14.
State contended that preamble provides for speedier trial for some offences. There is a reasonable classification between offences which require speedier trial and which do not.

Issue–

Held–

Harries C.J. who delivered the leading judgment, in which Das and Banerjee JJ. concurred, applied the test of what may be called “reasonable classification” and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the CrPC might form the basis of a reasonable classification and section 5 (1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial “any cases”, which must include an individual case, “whether the duration of such a case is likely to be long or not”.
1. Section 5 (1) of the West Bengal Special Courts Act, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as the procedure laid down by the Act for the trial by the Special Courts varied substantially from that laid down for the trial of offences generally by the Code of Criminal Procedure and the Act did not classify, or lay down any basis for classification, of the cases which may be directed to be tried by the Special Court, but left it to the uncontrolled discretion of the State Government to direct any case which it liked to be tried by the Special Court.
2. Fazal Ali, Mukherjea, Mahajan and Chandrashekhara Ayer–A rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for rebel and for defence with like protection and without discrimination.
3. If it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, it is not incumbent upon him before he can claim relief on the basis of fundamental rights to assert and prove that, in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class; nor would the operation of Art. 14 be excluded merely because it is proved that the legislature had no intention to discriminate, though discrimination was the necessary consequence of the Act. The question of intention may arise in ascertaining whether an officer acted mala fide or not; but it cannot arise when discrimination follows or arises on the express terms of the law itself.
4. Das J.-(1) Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test-
  1. (i) the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others, and
  2. (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.
5. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. But the mere fact that the inequality has not been made with the special intention of prejudicing a particular person or persons but in the general interest of administration will not validate a law if in fact it results in inequality of treatment. Nor can the constitutionality of a statute depend on the degree of the inequality brought about by the law.
6. Bose J.-Classification is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected; also granted the right to select, the classification can be as broad based as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those who propound this theory are driven to making qualifications. Thus, it is not enough merely to classify but the classification must not be ‘discriminatory’, it MUST NOT AMOUNT TO ‘HOSTILE ACTION’, there must be ‘reasonable grounds for distinction’, it must be ‘rational’ and there must be no ‘substantial discrimination’.
7. I can conceive of cases, where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary cases in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of intelligence. Here is classification. It is scientific and systematic. The intention and motive are good. There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges would not consider that fair and proper.
8. The test under Art. 14 is neither classification nor whether there is absolute equality in any academical sense of the term but WHETHER THE COLLECTIVE CONSCIENCE OF A SOVEREIGN DEMOCRATIC REPUBLIC AS REFLECTED IN THE VIEWS OF FAIR-MINDED, REASONABLE, UNBIASSED MEN, WHO ARE NOT SWAYED BY EMOTION OR PREJUDICE, CAN CONSIDER THE IMPUGNED LAWS AS REASONABLE, JUST AND FAIR AND REGARD THEM AS THAT EQUAL TREATMENT AND PROTECTION IN THE DEFENCE OF LIBERTIES WHICH IS EXPECTED OF A SOVEREIGN DEMOCRATIC REPUBLIC IN THE CONDITIONS WHICH OBTAIN IN INDIA TO-DAY.
9. Patanjali Sastri C.J. (dissenting).-Section 5 (1) of the impugned Act is not void or unconstitutional wholly or even in part because:-
10. The words in the enacting part of a statute must be confined to that which is the plain object and general intention of the legislature in passing the Act and the preamble affords a good clue to discover what that object was. The title and the preamble of the Act in the present case show unmistakably that the whole object and purpose of the Act was to devise machinery for the speedier trial of certain offences. The discretion intended to be exercised by the State Government must be exercised bona fide on a consideration of the special features or circumstances which call for comparatively prompt disposal of a case or cases proposed to be referred and sec. 5 (11 must be read as empowering the Government to direct the Special Court to try such offences or classes of offences or cases or classes of cases as in its judgment, require speedier trial.
11. Article 14 of the Constitution does not mean that all laws must be general in character and universal in application. The State must possess the power of distinguishing and classifying persons or things to be subjected to particular laws and in making a classification the legislature must be allowed a wide latitude of discretion and judgment. The classification is justified if it is not palpably arbitrary but is founded on a reasonable basis having regard to the object to be attained.
12. The powers of the legislature must include the power of entrusting an administrative body With a plenary but not arbitrary discretion to be exercised so as to carry out the purpose of the Act and the mere fact that the discretion might be exercised arbitrarily by the administrative body cannot make the law itself unconstitutional.
13. The impugned Act does not in terms or by implication discriminate between persons or classes of persons nor does it purport to deny to any one equality before the law or the equal protection of the laws.
14. Even from the point of view of reasonable classification the expediency of speedier trial is not too vague or indefinite to be the basis of classification.
15. The notification of the Government in the present case referring the case to the Special Court did not contravene Art. 14 and is not void inasmuch as there is nothing to show that the Government was influenced by any discriminatory motive or design or acted arbitrarily, but on the other hand there are obviously special features which mark off the group of cases referred as requiring speedier disposal.
16. There is no differentia in this case. It was quite possible for state to classify the specific offences by notification.

KATHI RANING RAWAT V STATE OF SAURASHTRA 1952 7J

Facts

The Saurashtra State Public Safety Measures Ordinance, 1948, was passed “to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.” As crimes involving violence such as dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, 10 and 11, empowered the State Government by notification in the official gazette to constitute Special Courts of criminal Jurisdiction to try such offences or classes of offences or such cases or classes of cases as the Government may, by order in writing, direct.
1. In Anwar Ali Sarkar, Govt. categorised cases and not class of offense.

Issue–

Held–

Patanjali Sastri, Fazl Ali, Mukherjea and Das JJ-[MC Mahajan, Chandrasekhara Aiyar and Bose JJ. dissenting]–That the impugned Ordinance in so far as it authorised the State Government to direct offences or classes of offences or classes of cases to be tried by the Special Court did not contravene the provisions of Art. 14 and was not ultra vires or void.
1. Patanjali Sastri–All legislative differentiation is not necessarily discriminatory. Discrimination involves an element of unfavourable bias, and it is in that sense that the expression has to be understood in the context. Equal protection claims under Art. 14 are examined with the presumption that the State action is reasonable and justified. Though differing procedures might involve disparity in treatment of persons tried under them, such disparity is not in itself sufficient to outweigh this presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands, e.g., when it amounts to a denial of a fair and impartial trial.
2. The impugned Ordinance having been passed to combat the increasing tempo of certain types of regional crime, the two-fold classification on the lines of type and territory adopted by the said Ordinance read with the notification issued thereunder was reasonable, and the degree of disparity of treatment involved was in no way in excess of what the situation demanded.
3. While on the one hand it cannot be said that any variation of procedure which operates materially to the disadvantage of the accused is discriminatory and violates Art. 14, the other extreme view that Art. 14 provides no further constitutional protection to personal liberty than what is afforded by Art. 21 is also wrong.
4. Fazl Ali J.-A distinction must be drawn between “discrimination without reason” and “discrimination with reason.” The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances. The clear recital of a definite objective in the earlier Ordinance and the impugned Ordinance which amended it, furnished a tangible and rational basis of classification and the Ordinance and the notification did not violate Art. 14. The Legislature should however have recourse to legislation like this only in very special circumstances.
5. Mukherjea J.-Where the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offending against the equal protection clause. The preamble of the main Ordinance (IX of 1948) taken along with the surrounding circumstances disclosed a definite legislative policy and objective, and the impugned Ordinance cannot therefore be held to be unconstitutional merely because it vested in the Government the authority to constitute Special Courts and to specify the classes of offences to be tried by such courts with a view to achieve that objective. The notification issued by the Government was also not void as it did not proceed on any unreasonable or arbitrary basis but on the other hand there was a reasonable relation between the classification made b.y the notification and the objective that the legislation had in view. Though it is a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, yet in determining the reach and scope of a particular legislation it is not necessary for the legislature to provide abstract symmetry. A TOO RIGID INSISTENCE ON ANYTHING LIKE SCIENTIFIC CLASSIFICATION IS NEITHER PRACTICABLE NOR DESIRABLE.
6. Das J.-The relevant part of sec. 11 properly construed and understood does not confer an uncontrolled and unguided power on the State Government; on the contrary, the power is controlled by the necessity of making a proper classification which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Ordinance as recited in the preamble. The classification effected by the impugned Ordinance and the notification thus satisfied the two conditions necessary for a valid classification, viz., that it must not be arbitrary but must be rounded on an intelligible differentia, and that differentia must have a rational relation to the object sought to be achieved by the Act. The Ordinance and the notification did not therefore contravene Art. 14 of the Constitution.
7. Mahajan J.-Section 11 of the Ordinance suggests no reasonable basis for classification either in respect of offences or in respect of cases, nor has it laid down any measure for the grouping either of persons or of cases or of offences, by which measure these groups could be distinguished from those outside the purview of the Ordinance. The words used in the preamble to the main Ordinance and the fact that sec. 9 of the impugned Ordinance provides that the power can be exercised for any particular area cannot limit the plain and unambiguous language of sec. 11, and the said section is therefore unconstitutional.
8. Chandrasekhara Aiyar J.-Sections 9 and 11 do not lay down any classification. The preamble to the earlier Ordinance also indicates no classification as the object stated there is a general one which has to be kept in view by every enlightened Government or system of administration. The classification adopted in the notification also is not a rational one.
9. Bose J.-The differentiation effected by the impugned Ordinance and the notification issued thereunder travels beyond bounds which are legitimate and the Ordinance therefore offends Art. 14 and is invalid. Held also, per curiam, that the Ordinance was not invalid on the ground that it involved delegation of legislative powers.

In Re: Special Courts Bill, 1978, IMP

The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the 14th Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.
The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
The Constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not PALPABLY ARBITRARY.
The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the CLASSIFICATION SHOULD NEVER BE ARBITRARY, ARTIFICIAL OR EVASIVE.
The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.
In order to pass the test, two conditions must be fulfilled, namely,
1. (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and
2. (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.
If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.
A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination.
This is thr commanding case.

Javed v State of Haryana 2002 8 SCC 369

Challenge to certain section of Panchayati Raj Act which disqualifies persons have more than 2 children from standing in the Panchayat elections.
Whether there is intelligible differentia?

Yes.

Whether it has rational nexus with the objective sought to be achieved by the statute?
Yes. One of the objective of Panchayati Raj was family planning and population control for that u need role models.
Why only Panchayati members of Haryana and not MPS and MLAs?
1. State is free to do piecemeal legislation. (Narasu Appa Mali)
2. Article 14 applies to laws, that emerge from same source.

CRITICISM OF REASONABLE CLASSIFICATION

Few things to note-

Discretion and power of court to determine the objective of statute.
Discretion to determine the rational nexus scrutiny.
It done on a very abstract logical reasoning.
That’s why this differential is arbitrary.
Only thing they look is it SHOULD NOT BE PALPABLY UNREASONABLE.
WEDNESSBURRY UNREASONABLE-so manifestly arbitrary that no reasonable person would support.

Indian Hotel and Restaurants Association v State of Maharashtra 2006

Facts–

This case came before the Supreme Court of India, on appeal, against a Bombay High Court verdict striking down the Maharashtra government’s statewide ban on dance performances in bars.
1. The ban dates back to August 2005, Bombay Police Act and and prohibited ‘any type of dancing’ in an “eating house, permit room or beer bar” (S.33A-Bombay Police Act), but made an exception for dance performances in three stars hotels and above, and other elite establishments. (S.33B-Bombay Police Act)
2. The State justified the ban by asserting that bar dancing corrupts morals, fuels trafficking and prostitution, and causes exploitation of women bar dancers.
3. Why this differentiation?
  1. Women are more likely to be exploited in category 1 due to the nature of dance performances, the tips they get, which means they have to compete with each other in terms of sexually suggestive way. There is no distance between the patrons and the dancers, morally corrupts the environment. 3 star and above hotels are subject to greater official scrutiny etc.
4. Due to the ban, 75,000 women workers became unemployed. Many did not have other marketable skills.
5. Statistics show that 68 per cent (link is external) of bar dancers were sole bread earners of their family.
6. While a rehabilitation program (link is external) was in place, it was not enforced.
7. Unemployment and financial hardship forced several erstwhile women bar dancers to leave the state or resort to prostitution (link is external), while many committed suicide.

Held–

On July 16th, 2013, the Supreme Court, in a landmark decision, upheld the rights of bar dancers. The judgment affirmed the Bombay High Court decision which found that the prohibition on dancing violated the right to carry on one’s profession/occupation under Article 19(1)(g) of the Constitution, and that banning dances in some establishments while allowing them in others infringed upon the right to equality under Article 14 of the Constitution.
1. The Supreme Court noted that “The restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance…”
2. The decision excoriates the ban stating that the “cure is worse than the disease” given that contrary to its purpose, the ban resulted in many women being forced into prostitution.
3. The Court urged that it would be more appropriate to bring about measures which ensure the safety and improve the working conditions of bar dancers. Instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach.
4. The Supreme Court upheld the fundamental rights of women workers, and stood for women’s empowerment in face of the government’s paternalism and ‘moral policing (link is external)’. Moreover, this case is important because the Supreme Court, which often takes on a very active role in protecting and enforcing economic and social rights in India, continues to be actively involved with the plight of bar dancers, by first issuing a contempt notice to the Maharashtra government, and thereafter by agreeing to hear a challenge to the renewed ban.
5. We fail to to see how the same dance will lead to depravity in one place would transform to acceptable standards in other category. Class bias. Myths based on stereotypes. Inegalitarian.

Two problems-

Over inclusion-all forms of dances prohibited and permitted
1. Under inclusion-only those below three stars prohibited
Maharashtra govt. latter removed S.35B and banned everywhere.
Kerala Bar association v State of Kerala AIR 2016
1. Kerala prohibited liquor sale claiming that alcoholism is big problem in the state (14% of the whole country).
2. First they prohibited in non-stars then 2 stars, then 3 stars and so on.
3. They used to put a rider that anyone who has a licence to serve liquor can get their licences renewed but govt. will not issue any new licence.
4. In the present case, it only permitted in 5 star establishment and for the rest once their licence expires, that will not be renewed.
5. “We have already noted that the least amount of sale of alcohol (0.08 per cent) occurs in Five Star hotels, which sale indubitably includes guest orders in room-service. We cannot therefore detect any arbitrariness or capriciousness either in the classification, nay the unique treatment given by the State to hotels possessing Five Star rating. The immediately succeeding question that arises is whether this classification has a reasonable nexus to the object sought to be achieved by the policy. In this regard, there can be no gainsaying that the prices/tariff of alcohol in Five Star hotels is usually prohibitively high, which acts as a deterrent to individuals going in for binge or even casual drinking. There is also little scope for cavil that the guests in Five Star hotels are of a mature age; they do not visit these hotels with the sole purpose of consuming alcohol.”

Harsora v Harsora AIR 2016 SC 4774

Its about Domestic Violence Act
Its a civil law, provides remedies against domestic violence which includes physical, sexual, mental, economic violence.
Domestic relation has been defined very broadly-includes live-in relationship
S.2(q) defined the respondent as an adult male who was in domestic relationship. Wife or domestic partner of the man could also file against the female relative of the husband/partner.
Challenged under Article 14. A mother cannot file against a daughter under this law. A mother and her daughter wanted to file complaint against his son.
Whether intelligible differentia?

Age and Sex

Whether it has rational nexus with the object sought to be achieved by the law?
Preamble-to prevent violence of any kind occurring in a domestic relationship

Object and reason

So there is no rational nexus with the object sought to be achieved by the law.
In Income tax, we have progressive taxation. But when we buy a product, there is flat tax for everyone. In that sense it is regressive. Facially neutral, but has a huge differential on different people. So State fails Article 14 by also not classifying under Article 14. Lack of classification can also create inequality.

KT Moopil Nair v State of Kerala AIR 1961 SC 552

Kerala imposed a flat tax of Rs 2 per acre for everyone. Another law limited the number of trees one can cut. A person has 2500 acres and he had to pay a tax of 5000 but his income was only 3100 INR.
Court agrees and say that take a hypothetical case of 2 people-each having 500 acre. But one’s all land is arid, other’s is fully fertile.
It is clear, therefore, that inequality is writ large on the Act and is. inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. IT IS ONE OF THOSE CASES WHERE THE LACK OF CLASSIFICATION CREATES INEQUALITY. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Art. 14 of the constitution.

Deepak Sibal v. Punjab University, AIR 1989 SC 903 IMP

In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective for such classification.
IF THE OBJECTIVE IS ILLOGICAL, UNFAIR AND UNJUST, necessarily the classification will have to be held as unreasonable.
In the instant case, the foregoing discussion reveals that the classification of the employees of Government/Semi-Government institutions etc. by the impugned rule for the purpose of admission in the evening classes or Three-Year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not sub- serve any fair and logical objective.”
Punjab University said the objective was to provide education to bonafides employees of the state who could not attend regular classes due to employment burden. They they have security of tennure compared to non-state employees who can move to another cities. They said further, that when it was open to all, they were getting bogus certificates.

Joseph Shine v. Union of India

“In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens.
The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine WHETHER THE PROVISION CONTRIBUTES TO THE SUBORDINATION OF A DISADVANTAGED GROUP OF INDIVIDUALS.
The disadvantage must be addressed not by treating a woman as ‘weak’ but by construing her entitlement to an equal citizenship. The former legitimizes patronising attitudes towards women. The latter links true equality to the realisation of dignity.
The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation. Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage.”

Ajay Hasia v Khalid Mujib Sehravardi (1981 AIR 487) (5J)

Facts–

The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India and it is run by a society created under a statute.
1. The petitioners applied for admission to the first semester of the B.E. course and appeared in the written test which was held on 16th and 17th June, 1979.
  1. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee.
  2. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination.
  3. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners.

Issue–

Whether the Society in the present case is an “authority” falling within the definition of “State” in Article 12?
1. Is it an instrumentality or agency of the Government?
2. Whether violation of Article 14?

Held–

Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is-
1. That the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution.
2. It would appear that prima facie protection against infraction of Article 14 is available only against the State.
3. 6 indicative factors-
  1. Whether the Entire capital is owned by State
  2. So much financial assistance by State
  3. Whether State confers or protects the monopoly state of the entity
  4. Whether “Deep and pervasive control” over management
  5. Whether Performs Important public function
  6. Earlier it would be done by State department but later transferred to this entity.
4. Ajay Hasia marks a shift from jurisprudence of previous cases.
5. If the Society is an “authority” and therefore “State” within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14.
6. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely,
  1. (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
  2. (ii) that that differentia has a rational relation to the object sought to be achieved by; the impugned legislative or executive action.
7. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article.
  1. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality.
  2. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.
8. It was clear from chart submitted on behalf of Petitioners that marks awarded at interview was in inverse proportion to marks obtained by other candidates and also not commensurate with marks obtained in written test-Such chart also not create a strong suspicion that Committee deliberately manipulated marks at viva voce examination with a view to favouring other candidates as against Petitioners – therefore, selection for academic year 1979-80 could not be interfered – Petitions dismissed.
9. Such a high threshold.
10. Don’t confuse Article 14 with classification.

Inspector Ravina v Union of India Delhi HC 2015

Facts-concerned a challenge to the CRPF’s denial of promotion to a female inspector.
1. The Petitioner, an inspector in the CRPF, was unable to attend a Pre-Promotional Course, conducted between July and August 2011, because she was pregnant.
2. Consequently, after her pregnancy was over, she attended the next Course, conducted in July and August 2012, and qualified, thus fulfilling the requirements for promotion to the next-higher post.
3. However, when the CRPF released its promotion list in 2014, the Petitioner’s name was not included, and consequently, she lost her seniority vis-a-vis her batchmates and juniors.
4. The rules provided that if a person could not attend promotional course, she can do later unless she was unwilling.
5. When the Petitioner filed a representation before the CRPF, she was informed that she had lost her seniority because of her “unwillingness to attend the promotional course held in 2011.
6. The Petitioner challenged this decision before the High Court.
Issue-Whether the Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batchmates?

Held–

First, the Court held penalising the Petitioner for her pregnancy violated Article 21 of the Constitution. In paragraph 9, Justice Ravindra Bhat observed:
1. To conclude that pregnancy amounts to mere unwillingness – as the respondents did in this case- was an indefensible.
2. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother.
3. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times.
4. This commitment is signified by Article 42 and Article 45.
5. There are two important points that need to be noted here.
  1. The first is that under the Court’s interpretation of Article 21, personal liberty is violated not only through coercive State action, but also State action that puts persons in a position where they must choose between availing a State benefit, or exercising a constitutional right.
    1. In other words, IF “UNWILLINGNESS” IS TO BE CONSTRUED AS INCLUDING ABSENCE DUE TO PREGNANCY, THEN A WOMAN IS PUT IN A POSITION WHERE SHE HAS TO EITHER FOREGO HER PROMOTION, OR FOREGO HER PREGNANCY.
    2. The State is therefore penalising women who exercise their constitutional rights by withholding the benefit of promotion from them.
    3. Readers will note the similarity between the argument here, and the doctrine of unconstitutional conditions discussed in the last post. The petitioner’s position here was even stronger, however, because denial of promotion is a more tangible and direct harm than withdrawal of a tax exemption.
  2. The second is the Court’s use of the DPSP – in particular, Articles 42 and 45. As I have attempted to argue before, a conceptually sound approach towards the DPSPs must respect the fact that the framers chose to make them unenforceable, while finding a textually and structurally relevant role for them in constitutional interpretation. There are two possible ways of doing this.
    1. One is that where a legal provision may be reasonably interpreted in two different ways, the interpretation that furthers the Directive Principles ought to be given precedence.
    2. The second is that the Directive Principles may be used to provide concrete content to the abstract concepts contained in Part III of the Constitution.
  3. In paragraph 9, the Delhi High Court does both. Referring to Articles 42 and 45, it holds that the guarantee under Article 21 is not merely a negative prohibition against coercive State action, but also casts a positive obligation upon the State “to ensure that circumstances conducive to the exercise of this [Article 21] choice are created and maintained by the State at all times.”
  4. In the instant case, this concretely translates into prohibiting the State from indirectly penalising a person if they choose to exercise their constitutionally guaranteed right to personal liberty. The Court also uses the DPSPs interpretively, by preferring an interpretation of the word “unwilling” that excludes pregnancy rather than one that includes it.
  5. “It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees- i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory.
  6. Unlike plain unwillingness – on the part of an officer to undertake the course, which can possibly entail loss of seniority – the choice exercised by a female employee to become a parent stands on an entirely different footing. If the latter is treated as expressing unwillingness, CRPF would clearly violate Article 21. As between a male official and female official, there is no distinction, in regard to promotional avenues; none was asserted. In fact, there is a common pre-promotional programme which both have to undergo; both belong to a common cadre. In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc.
  7. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.
  8. There are some crucial points here that need to be unpacked.
    1. The first is the express acknowledgment of pregnancy-based discrimination as a form of sex discrimination, which brings it within the non-discrimination guarantees under Articles 15 and 16 of the Constitution.
    2. As we discussed recently on this blog, the Supreme Court in Nargesh Mirza’s case (1981), dealt a serious blow to Indian sex discrimination jurisprudence by failing to consider pregnancy on the touchstones of Articles 15 and 16, and instead considering it under the “arbitrariness” prong of Article 14.
    3. Bizarrely, in NARGESH MIRZA, the SC held that termination on a first pregnancy would be unconstitutional because arbitrary, but termination on a third pregnancy wouldn’t be (since it helped the nation’s family planning program and helped women become good mothers!).
    4. The discontents of the arbitrariness approach under Article 14 are legion, and I do not need to recount them here. The Court’s analysis of pregnancy discrimination under Article 16 represents a significant advance.
6. What is even more important, however, is how the Court does it. Justice Bhat observes that “a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.” This is the language of indirect discrimination: FACIALLY “NEUTRAL” PROVISIONS HAVE A DISCRIMINATORY IMPACT because they end up reproducing existing social inequalities and hierarchies.
7. As we have seen in our discussion of the evolution of Indian sex discrimination jurisprudence, indirect discrimination still has only a tenuous hold upon the imaginations of our judges.
8. A large number of cases have chosen to interpret the word “grounds” in Articles 15 and 16 as referring to the reasons, or motives, behind a law, and have consequently refused to find discrimination even when there is a clear case of differential impact. In my analysis of the text of Articles 15 and 16, I advanced an alternative reading of the word “grounds”, one that referred not to the motive of the law, but to the characteristics that were protected from adverse impact (sex, race, caste etc.).
9. An effect or impact-based test was accepted by the Supreme Court in Anuj Garg. However, even in Anuj Garg, the law itself was directly discriminatory: it prohibited women from working as bartenders. The Delhi High Court, however, applies the framework of indirect discrimination to a facially neutral law, which discriminated not on the basis of sex, but on the basis of pregnancy. In this, it follows an analytical tradition, the finest exemplar of which is the Andhra Pradesh High Court’s judgment in 1983, which struck down the restitution of conjugal rights provision under the Hindu Marriage Act as discriminatory, because of its strongly adverse impact upon women.*
10. It is also fascinating to note that Justice Bhat places the word “normal” within quotation marks. In the first part of the paragraph, he notes that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct.
11. In other words, the “normal” is constructed form the perspective of a privileged subject position. Previously on this blog, I have cited the work of Joan Williams, who makes the point in the context of workplace discrimination:“… society is structured so that everyone one, regardless of sex, is limited to two unacceptable choices – men’s traditional life patterns or economic marginality.
12. Under the current structure of wage labor, people are limited to being ideal workers, which leaves them with inadequate time to devote to parenting, and being primary parents condemned to relative poverty (if they are single parents) or economic vulnerability (if they are currently married to an ideal worker).
13. Wage labor does not have to be structured in this way… [the recent] massive shift in the gendered distribution of wage labor has produced intense pressures to challenge the assumption that the ideal worker has no child care responsibilities. But this pressure is being evaded by a cultural decision to resolve the conflicts between home and work where they have always been resolved: on the backs of women. In the nineteenth century, married women “chose” total economic dependence in order to fulfill family responsibilities.’ Today, many women with children continue to make choices that marginalize them economically in order to fulfill those same responsibilities, through part-time work, “sequencing,” the “mommy track” or “women’s work.” In each case, the career patterns that accommodate women’s child-care responsibilities often are ones that hurt women’s earning potential.”
14. The “normal” worker, therefore, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective.
15. It is this edifice of exclusion that the Delhi High Court’s judgment interrogates, and then finds to be inconsistent with the Constitution.
16. By de-mythologising “normalcy”, the Delhi High Court has made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice.
17. In his dissenting opinion in Volks vs Robinson, Justice Albie Sachs of the South African Constitutional Court observed that “the purpose of constitutional law is to convert misfortune to be endured into injustice to be remedied.”
18. The Constitution guarantees not only formal equality, but also promises that entrenched power structures which, over decades, even centuries of sedimentation, have attained the status of facts of nature, will no longer be treated as immutable in the very existence of things, but as human-caused instances of injustice, and will be dismantled. In a very profound sense, this judgment implements Justice Shah’ vision of the transformative Constitution.
19. The case before the Delhi High Court was an easier one than the one before the AP High Court, because while only women can get pregnant, both men and women can invoke the restitution of conjugal rights provision. The AP High Court rested its decision upon the unequal power relations within the family, which would mean that restitution of conjugal rights would adversely impact wives to an enormous degree, while having very little impact upon the lives of husbands. That judgment was reversed in one year by the Supreme Court. Perhaps it was too far ahead of its time. One hopes that thirty years later, as indirect discrimination continues to struggle for a foothold within Indian discrimination jurisprudence, the Delhi High Court has not also committed the error of being far ahead of its time.

DIFFERENTIAL IMPACT TEST

To be decided on probabilities or evidence?
Basic of Classification-
1. Treating people in an even handed manner
2. Treat people in a consistent manner and not arbitrary.
3. You always need a comparator. Classification requires a comparator.
4. Rational Nexus with the object of the law
5. You are not asking whether the objective is good.
6. In US there are three levels of classification. Rational classification is the lowest.

Rajbala v State of Haryana 2016 1 SCC 463

Facts-

The Haryana Panchayati Raj (Amendment) Act, 2015 was challenged under Article 14 of the Constitution of India. The Supreme Court of India dismissed the challenge and upheld the constitutionality of the Act.
1. Article 40 of the Constitution mandates the organisation of village panchayats.
2. To effectuate such obligation of the State, Constitution authorised (even prior to the 73rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make laws with respect to.
3. Laws have been made from time to time by State Legislatures establishing a three-tier Panchayat system by 1980’s. It was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of a three-tier Panchayati Raj institutions be provided under the Constitution. Hence, the 73rd Amendment of the Constitution by which Part IX was inserted with effect from 1993.
4. The composition of Panchayats is to be determined by the legislature of the concerned State by law subject of course to various stipulations contained in Part IX of the Constitution; such as reservations of seats in favour of scheduled castes and scheduled tribes etc.
5. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as The Act) was enacted to bring the then existing law governing Panchayats in the State in tune with the Constitution as amended by the 73rd amendment.
6. Section 175 mandates that persons suffering from any one of the disqualifications mentioned in Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can they continue in office if they incur any one of the disqualifications, after having been elected. The categories so specified runs into a long list, such as, convicts of certain categories of offences, adjudicated insolvent, people of unsound mind, people who hold any office of profit under any one of the three categories of Panchayats etc.
7. By the Impugned Act, five more categories of persons are rendered incapable of contesting elections for any one of the elected offices under The Act. These categories are:
  1. (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years,
  2. (ii) persons who fail to pay arrears, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank,
  3. (iii) persons who have arrears of electricity bills,
  4. (iv) persons who do not possess the specified educational qualification and lastly (Matriculate for man, middle pass for women, Middle class for SC Men, Primary pass for SC Women)
  5. (v) persons not having a functional toilet at their place of residence.
8. The three petitioners herein claim to be political activists interested in contesting the local body elections, but would now be disabled to contest as none of them possess the requisite educational qualification.
9. The petitioners challenge the impugned Act principally on the ground that the enactment is violative of Article 14 of the Constitution. It is argued on behalf of the petitioners that
  1. (i) the impugned provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution. They create unreasonable restrictions on the constitutional right of voters to contest elections under the Act.
  2. (ii) they create an artificial classification among voters (by demanding the existence of certain criteria which have no reasonable nexus to the object sought to be achieved by the Act), an otherwise homogenous group of people who are entitled to participate in the democratic process under the Constitution at the grass-roots level; and
  3. (iii) the classification sought to be made has no legitimate purpose which can be achieved.
  4. On the other hand, the learned Attorney General appearing for the respondents submitted that nobody has a fundamental right to contest an election under our Constitution and it is really not necessary in the present case to decide whether the right to contest an election to the Panchayats is a constitutional right. He argued that even assuming for the sake of argument that there is a constitutional right to contest an election to the Panchayats, such right is expressly made subject to qualifications/disqualifications contemplated under Article 243F which authorises the State legislature to prescribe disqualifications for contesting election to any Panchayats. Prescription of qualifications to contest an election based on criteria such as minimal educational accomplishment etc. cannot be said to be either arbitrary or irrelevant having regard to the nature of duties required to be discharged by persons elected to any one of the offices under the Act.
  5. The learned Attorney General also submitted that the legislature best comprehends the needs of the society. The decision to prescribe such a qualification is in the realm of wisdom of the legislature and the Courts do not sit in review of such wisdom on the ground that the legislative decision is arbitrary.

Issue–

Whether the impugned provision which disqualifies a large number of voter population and denies their right to contest for various offices under THE ACT is discriminatory and therefore constitutionally invalid for being violative of Article 14?

Held–

J Chelameswar. Answers to questions raised by the petitioners depend upon answer to the question whether right to vote or the right to contest an election to any of the constitutional bodies is a constitutional or a statutory right, since the extent to which curtailment or regulation of such right is permissible depends upon the nature of the right.
1. In our opinion, the question whether the right to vote at an election for either the Lok Sabha or the Legislative Assembly is a statutory right or a constitutional right is no more res integra and stands concluded by the above mentioned judgments, in PUCL and DMDK cases.
2. Articles 84 and 173 purport to stipulate qualifications for membership of Parliament and Legislatures of the State respectively. Articles 102 and 191 purport to deal with disqualifications for membership of the above mentioned two bodies respectively.
3. The distinction between the expressions qualification and disqualification in the context of these four Articles is little intriguing. There is no clear indication in any one of these four Articles or in any other part of the Constitution as to what is the legal distinction between those two expressions.
4. We are, therefore, of the opinion that the distinction between qualifications and disqualifications is purely semantic.
5. We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State legislatures. In so far as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution.
6. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the ‘appropriate legislature’.
7. The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament.
8. The next question is Whether such constitutional rights exist in the context of elections to the Panchayats?
  1. Having regard to the scheme of Part IX of the Constitution, the purpose for which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any reason to take a different view.
  2. This Court in Javed & Others v. State of Haryana & Others, (2003) 8 SCC 369, held that right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right.
  3. The right to vote and right to contest at an election to a Panchayat are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly.
  4. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by law made by an appropriate Legislative Body. Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.
9. The petitioners argued that the scheme of the Constitution is to establish a democratic, republican form of Government as proclaimed in the Preamble to the Constitution and any law which is inconsistent with such scheme is irrational and therefore ‘arbitrary’.
  1. In support of the proposition that the Constitution seeks to establish a democratic republic and they are the basic features of the Constitution, petitioners placed reliance upon His Holiness Kesavananda Bharati v. State of Kerala (1973) and Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, paras 563 and 578. There cannot be any dispute about the proposition.
  2. In support of the proposition that a statute can be declared unconstitutional on the ground that it is arbitrary and therefore violative of Article 14, petitioners relied upon judgments of this Court reported in Subramanian Swamy v. Director, Central Bureau of Investigation & Another, (2014) 8 SCC 682, Indian Council of Legal Aid v. Bar Council of India, (1995) 1 SCC 732, B. Prabhakar Rao & Others v. State of Andhra Pradesh & Others, 1985 (Supp) SCC 432 and D.S. Nakara & Others v. Union of India, (1983) 1 SCC 305 and certain observations made by Justice A.C. Gupta in his dissenting judgment in R.K. Garg v. Union of India, (1981) 4 SCC 675.
10. In our opinion, none of the above mentioned cases is an authority for the proposition that an enactment could be declared unconstitutional on the ground it is “arbitrary”.
11. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context.
12. From the above extract it is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is “arbitrary” since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of “substantive due process” employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation.
13. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is ‘arbitrary’.
14. The next case of the petitioners is that such a classification created by each of the impugned clauses amount to an unreasonable classification among people who form one class but for the impugned, without any intelligible difference between the two classes and such classification has no nexus with the object sought to be achieved.
  1. That as per the National Population Register 2011, total rural population in the State is 1.65 crore out of which 96 lac are above 20 years of age. Further 57% of such population, who are over 20 years of age, is eligible to contest even after the introduction of impugned disqualification in respect of having minimum education qualification.
  2. Coming to the statistics regarding scheduled caste population, the total scheduled caste population of Haryana, it appears, is 21 lakhs of which 11 lakhs are men and 10 lakhs are women of which only 6.3 lakhs men and 3.1 lakhs women constituting 59% and 32% respectively are educated. In other words, 68% of the scheduled caste women and 41% of the scheduled caste men would be ineligible to contest PANCHAYAT elections.
  3. An analysis of the data in the above table indicates that a large number of women (more than 50% of the otherwise eligible women) in general and scheduled caste women in particular would be disqualified to contest PANCHAYAT elections by virtue of the IMPUGNED ACT.
  4. Coming to scheduled caste women and the proviso to clause (v) of Section 175(1), though educational qualification required is 5th (primary) pass, such a qualification only entitles them to contest an election for the post of PANCH of a village but to no other post. Therefore, if a scheduled caste woman desires to contest either to the post of SARPANCH or any other post at ‘Samiti’ or District level, she must be “middle pass”. The exact number of scheduled caste women who possess that qualification is not available on record. Even assuming for the sake of argument that all educated scheduled caste women indicated in the Annexure-5 are middle pass, they only constitute 32% of the scheduled caste women. The remaining 68% of the women would be disqualified for contesting any election under the IMPUGNED ACT.
15. The question is – whether the impugned provision which disqualifies a large number of voter population and denies their right to contest for various offices under THE ACT is discriminatory and therefore constitutionally invalid for being violative of Article 14.
  1. The learned Attorney General referred to Section 21 of The Act which catalogues the functions and duties of Gram Panchayat falling under 30 broad heads. To demonstrate the range of those heads, he pointed out some of the duties of a Gram Panchayat and submitted that in the light of such responsibilities to be discharged by members elected to the Gram Panchayat, the legislature in its wisdom thought it fit to prescribe a minimum educational qualification and such a prescription cannot be said to be making an unreasonable classification among the voters attracting the wrath of Article 14.
  2. The impugned provision creates two classes of voters – those who are qualified by virtue of their educational accomplishment to contest the elections to the Panchayats and those who are not.
  3. The proclaimed object of such classification is to ensure that those who seek election to Panchayats have some basic education which enables them to more effectively discharge various duties which befall the elected representatives of the Panchayats.
  4. The object sought to be achieved cannot be said to be irrational or illegal or unconnected with the scheme and purpose of THE ACT or provisions of Part IX of the Constitution.
  5. It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration of the Panchayats. The classification in our view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved.
16. The only question that remains is whether such a provision which disqualifies a large number of persons who would otherwise be eligible to contest the elections is unconstitutional.
  1. We have already examined the scheme of the Constitution and recorded that every person who is entitled to vote is not automatically entitled to contest for every office under the Constitution.
  2. Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest.
  3. No doubt such prescriptions render one or the other or some class or the other of otherwise eligible voters, ineligible to contest. When the Constitution stipulates undischarged insolvents or persons of unsound mind as ineligible to contest to Parliament and Legislatures of the States, it certainly disqualifies some citizens to contest the said elections. May be, such persons are small in number.
  4. Question is not their number but a constitutional assessment about suitability of persons belonging to those classes to hold constitutional offices.
  5. If it is constitutionally permissible to debar certain classes of people from seeking to occupy the constitutional offices, numerical dimension of such classes, in our opinion should make no difference for determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible. We, therefore, reject the challenge to clause (v) to Section 175(1).
17. We shall now deal with the challenge to clauses (t) and (v) of Section 175(1) of The Act. These two clauses disqualify persons who are in arrears of amounts to cooperative bodies specified in clause (t) and the electricity bills.
18. These provisions are challenged on the ground that they impose unreasonable burden on voters who are otherwise eligible to contest the election and therefore create an artificial and unreasonable classification which has no nexus to the objects sought to be achieved by the ACT.
  1. Constitution makers recognised indebtedness as a factor which is incompatible in certain circumstances with the right to hold an elected office under the Constitution. Article 102(1)(c)[48] and Article 191(1)(c)[49] declare that an undischarged insolvent is disqualified from becoming a Member of Parliament or the State Legislature respectively. By virtue of the operation of Article 58(1)(c) and 66(1)(c), the same disqualification extends even to the seekers of the offices of the President and the Vice-President.
  2. No doubt that rural India, particularly people in the agricultural sector suffer the problem of indebtedness. The reasons are many and it is beyond the scope of this judgment to enquire into the reasons. It is also a fact that there have been cases in various parts of the country where people reportedly commit suicides unable to escape the debt trap.
  3. But, it is the submission of the respondents that such incidents are very negligible in the State of Haryana as the agricultural sector of Haryana is relatively more prosperous compared to certain other parts of the country.
  4. We do not wish to examine the statistical data in this regard nor much of it is available on record. In our view, such an enquiry is irrelevant for deciding the constitutionality of the impugned provision. We are also not very sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections whether at Panchayats level or otherwise.
  5. We can certainly take judicial notice of the fact that elections at any level in this country are expensive affairs. For that matter, not only in this country, in any other country as well they are expensive affairs. In such a case the possibility of a deeply indebted person seeking to contest elections should normally be rare as it would be beyond the economic capacity of such persons.
19. Clause (w) disqualifies a person from contesting an election to the Panchayat if such a person has no functional toilet at his place of residence.
20. Once again the submission on behalf of the petitioners is that a large number of rural population simply cannot afford to have a toilet at their residence as it is beyond their economic means. To render them disqualified for contesting elections to the Panchayats would be to make an unreasonable classification of otherwise eligible persons to contest elections to Panchayats and, therefore, discriminatory.
  1. It is submitted on behalf of respondents that the submission of the petitioner is without any factual basis.
  2. According to statistical data available with the State, there are approximately 8.5 lakhs house holders classified as families falling below poverty line (BPL) in the State of Haryana. It is further submitted that right from the year 1985 there have been schemes in vogue to provide financial assistance to families desirous of constructing a toilet at their residence. In the initial days of such a scheme Rs.650/- was given by the State and from time to time the amount was revised and at present Rs.12000/- is provided by the State to any person desirous of constructing a toilet. As per the data available with the State, of the above mentioned 8.5 lakhs households, classified to be below the poverty line, approximately 7.2 lakhs households had availed the benefit of the above scheme.
  3. Therefore, according to the respondents if any person in the State of Haryana is not having a functioning toilet at his residence it is not because that he cannot afford to have a toilet but because he has no intention of having such facility at his residence.
  4. It is very forcefully submitted by the learned Attorney General that a salutary provision designed as a step for eliminating the unhealthy practice of rural India of defecating in public, ought not to be invalidated.
  5. It is a notorious fact that the Indian population for a long time had this unhealthy practice of defecating in public.
  6. The Father of the Nation wrote copiously on this aspect on various occasions. He took up with a missionary zeal the cause to eradicate this unhealthy practice. At some point of time, he even declared that the priority of this country should be to get rid of such unhealthy practice than to fight for independence. It is unfortunate that almost a hundred years after Gandhiji started such a movement, India is still not completely rid of such practice. The reasons are many. Poverty is one of them. However, this unhealthy practice is not exclusive to poorer sections of rural India. In a bid to discourage this unhealthy practice, the State has evolved schemes to provide financial assistance to those who are economically not in a position to construct a toilet. As rightly pointed by the respondents, if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will. One of the primary duties of any civic body is to maintain sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and administer them must set an example for others. To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body, such a policy, in our view, can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the object sought to be achieved by the Act.

Abhay Manohar Sapre.

Coming now to the question of constitutional validity of Section 175 (1)(v) of the Act which provides that candidate must possess certain minimum educational qualification if he/she wants to contest an election. In my opinion, introduction of such provision prescribing certain minimum educational qualification criteria as one of the qualifications for a candidate to contest the election has a reasonable nexus with the object sought to be achieved.
1. In fact, keeping in view the powers, authority and the responsibilities of Panchayats as specified in Article 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of the Panchayats as specified in Article 243-H, it is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned to Panchyats in Part IX. It is the legislative wisdom to decide as to what should be the minimum qualifications, which should be provided in the Act.
2. No one can dispute that education is must for both men and women as both together make a healthy and educated society. It is an essential tool for a bright future and plays an important role in the development and progress of the country.
3. In my view, therefore, Section 175 (v) of the Act is intra vires the Constitution and is thus constitutionally valid.
Now coming to the question regarding constitutionality of Section 175(w) of the Act, which provides that if a person has no functional toilet at his place of residence, he/she is disqualified to contest the election.
In my view, this provision too has reasonable nexus and does not offend any provision of the Constitution.
Indeed, there are no grounds much less sustainable grounds available to the petitioners to question the validity of this provision.
1. This provision in my view is enacted essentially in the larger public interest and is indeed the need of the hour to ensure its application all over the country and not confining it to a particular State.
2. Moreover, the State having provided adequate financial assistance to those who do not have toilet facility for construction of toilet, there arise no ground to challenge this provision as being unreasonable in any manner. Since this issue has already been elaborately dealt with by my learned brother, therefore, I do not wish to add anything more to it.
In the light of the foregoing discussion agreeing with my learned brother, I also hold that Section 175 (v) is intra vires the Constitution and is thus constitutionally valid.

Subramanian Swami v CBI 2014 8 SCC 463

Facts–

Issue–

The constitutional validity of Section 6-A is in issue in these two writ petitions, both filed under Article 32 of the Constitution?
1. The validity of Section 6-A has been questioned on the touchstone of Article 14 of the Constitution.

Held–

The bench quashed S.6A of DSPE as being violative of Article 14 of the Constitution.
1. Terming that the provision is discriminatory and divides the bureaucracy into two sets of officers and shields those at the senior level, the Court observed that, “All government officials have to be treated equally and have to face the same process of inquiry in graft cases.”
2. Court further noted that, “Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.
3. The Constitution Bench eventually declared the impugned provision unconstitutional not on the ground of it being arbitrary but on the ground it makes an unreasonable classification of an otherwise homogenous group of officers accused of committing an offence under the Prevention of Corruption Act without there being reasonable nexus between the classification and the object of the Act.

Shayara Banu v UOI

(Justice Nariman’s opining that deals with Article 14 and manifest arbitrariness)

Facts–

Issue–

Held–

DOCTRINE OF ARBITRARINESS
That classification should not be arbitrary.
In case of the red colour of university uniform, the rationale can be in absence of uniform, people will dress according to their socio-economic background.
Is that enough rational for denying people right to dress whatever?
Is there better reason that can trump this reason?
The doctrine says that no doctrine of state power should be based on “will” alone.
Based on rational element and not on whims.

EP Royappa v State of TN 1974

Bhagwati says that Equality is a dynamic concept…..Art 14.
Equality requires that state action…Art 14.
A person was transferred and he claimed it was due to mala-fide intention.

RD Shetty v Airport Authority

Article 14 strikes at arbitrariness in State action…non-discriminatory.

Nargis Mirza case

Male and female flight crews.

Focus is here on retirements.
Whether difference in the service conditions of males and females is arbitrary?
Females are to retire at 35, or if they get married within first 4 years of service if they get pregnant.
Court says arbitrary is ground under Article 14.
But marriage rule is not arbitrary.
Termination on first pregnancy is arbitrary as grounds are unjustifiable with data.

Retirement rule is also arbitrary.

Corporation said that they don’t look attractive and pleasing after age of 35.
Court said that such grounds are unreasonable.
As we discussed recently on this blog, the Supreme Court in Nargesh Mirza’s case (1981), dealt a serious blow to Indian sex discrimination jurisprudence by failing to consider pregnancy on the touchstones of Articles 15 and 16, and instead considering it under the “arbitrariness” prong of Article 14.
Bizarrely, in Nargesh Mirza, the SC held that termination on a first pregnancy would be unconstitutional because arbitrary, but termination on a third pregnancy wouldn’t be (since it helped the nation’s family planning program and helped women become good mothers).
The discontents of the arbitrariness approach under Article 14 are legion, and I do not need to recount them here. The Court’s analysis of pregnancy discrimination under Article 16 represents a significant advance.
Court is using arbitrary and unreasonable in an interchangeable manner.
Court says that it has to be palpably arbitrary, grossly arbitrary etc so unreasonable that no reasonable person can uphold such decision.

Balco v Balco Employees Union

Narmada Bachao Andolan v Union of India 2000 (10) SCC 664

The courts, in the exercise of their jurisdiction…..constitution.

Court is saying that it can only look into the legal aspect and not the policy aspect.

Natural Resources allocation case 2012

State action has to be fair…constitution of India.

Whether doctrine of arbitrariness can be used for striking down legislative actions?

Courts divided on this matter.

Mardia Chemicals v Union of India 2004

You can.

State of AP v McDowell 1996
You can’t

Subramaniam Swamy v CBI

That classification violates test of reasonableness so we don’t need to go in arbitrariness.

Shayara Bano v UOI

Manifest Arbitrariness is a ground for striking down a legislation. (Obiter of FS Nariman)

Navtej Johar

Manifest Arbitrariness is a ground for striking down a legislation.

ARTICLE 15-PROHIBITION ON DISCRIMINATION

ARTICLE 15-Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
1. (a) access to shops, public restaurants, hotels and places of public entertainment; or
2. (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Nothing in this article shall prevent the State from making any special provision for women and children.

ARTICLE 16(2)–No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

ARTICLE 29(2)–No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

SECTION 298(1)-GOI Act 1935. Same prohibited markers.

Punjab Province v Daulat Singh AIR 1946 PC 66

It is not a question….sub-section.

Intention of legislation howsoever good it is, doesn’t matter. Its effect matters. (Under 14 as well)
Mahadev Jiew v BB Sen AIR 1951 Cal 563
1. Order 25 Rule 1 (3) of the CPC provided that property less women who are resident in India have to provide security while properly less men who are resident in India will not have to provide such security.
2. Order 25 Rule 1 (3) of the CPC is not a law….sex alone.
Radha Charan Patnaik v State of Orissa 1969

RS Singh v State of Punjab

A rule prohibited women from being appointed as SP in men’s prison.
Court said-When peculiarity of sex is attached to other considerations which has rational nexus with the object of he law, it cannot be said to be violative of Article 15 and 16.
It needs no great imagination to visualise..predicament.
That there are patent physical disparities between….rest upon her.

AM Shaila v Chairman 1972

Walter Alfred Baid v UOI 1976
1. It is difficult to accept the position that a discrimination based on sex alone…..class of work.
Court in these cases focussed on the word-OLNY.

AIR India v Nargis Mirza

It noted, first, that under S.16 of the Equal Remuneration Act, it was stated that “where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the differences in regard to the remuneration, or a particular species of remuneration, of men and women workers in any establishments or employment is based on a factor other than sex, it may, by notification, make a declaration to that effect, and any act of the employer attributable to such a difference shall not be deemed to be a contravention of any provision of this Act.”
In this case, the government had passed a notification under Section 16. The Court held that “the declaration by the Central Government, therefore, completely concludes the matter.” The matter, however, is not quite as simply as that. There are three reasons why the Section 16 notification should not have concluded the issue in this case. First, as the text of the Section makes clear, the deeming fiction is limited in nature: the Government’s notification only exempts a classification from liability under the Equal Remuneration Act, and doesn’t give it immunity from a constitutional challenge. Secondly – and most importantly – Section 16 deals with situations where the classification is deemed by the government to be based on a factor other than sex. This, as we have seen before, is an approach to discrimination law that focuses on the discriminator’s reasons, and not on the law’s effects upon protected constituencies. But, as we discussed in the previous essay, there are overwhelming jurisprudential reasons for holding the effects-based test to be the correct one for adjudicating constitutional claims against discrimination. Consequently, Section 16 could have no effect upon the Article 15(1) or 16(2) enquiries. And lastly, even if we take Article 15(1) to incorporate a reason-based model, S. 16 clearly cannot be read to foreclose an independent constitutional enquiry by the Court! If that were to be the case, then S. 16 effectively becomes the following: “where the Appropriate Government makes a declaration that a classification does not violate Article 15(1) of the Constitution, any such classification will be deemed not to violate Article 15(1).” At the very least, such a reading would make Section 16 suffer from the vice of excessive delegation. Therefore, it seems evident that the Supreme Court was incorrect in holding that “the declaration by the Central Government… completely concludes the matter.”After noting this, the Supreme Court observed that “even otherwise, what Articles IS (l) and 16 (2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.” It then cited excerpts from Yusuf Abdul Aziz and M.C. Muthamma, before observing “for these reasons, therefore, the argument of Mr. Setalvad that the conditions of service with regard to retirement, etc., amount to discrimination on the ground of sex only is overruled and it is held that the conditions of service indicated above are not violative of Art. 16 on this ground.” Yet there is absolutely no reasoning by the Court to link the premise to the conclusion. It made no effort to adduce the “grounds” apart from sex that were at play in the impugned classification. There are very good reasons for this: it would have required the Court to ask the principal question that it had avoided throughout its judgment: what was the basis for the initial classification into Air Flight Pursers (male) and Air Hostesses (female), upon which the different conditions of service were superimposed? Especially after finding that the work performed overlapped, the Court would have been left with no option but to hold that the classification was only on the basis of sex. Instead, and unfortunately, it evaded the question.

NALSA V UOI 2014

Article 15 and 16 sought to prohibit discrimination on the basis of sex….gender identity.

Navtej Johar v UOI

Article 15(3)-Special provision for women and children.
Whether that provision has to be beneficial or not?
Who will decide whether such provision is beneficial.

Yusuf Abdul Aziz v State of Bombay AIR 1954 (5J)

Adultery provision of S.498 was challenged for being discriminatory on the basis of sex as it only punished men.
SC said it was special provision 15(3) for the protection of women.
It need not necessary be beneficial for women.

Joseph Shine

Neither Article 15(1) nor Article 15(3) allow discrimination against women….protecting women.
DISCRIMINATION GROUNDED IN PATERNALISTIC AND PATRIARCHAL NOTIONS CANNOT CLAIM PROTECTION OF ARTICLE 15(3)

Vasanta R v UOI (Madras HC 2001)

S.66 of the Factories Act was challenged. It provided that women cannot be allowed to work in night shift in factory.
State contends that is tended to protect women.
Not easy to verify whether such provisions are beneficial or advancing stereotypes.
Court said u cannot use social reality to restrict their employment opportunities.

Leela v State of Kerala 2004

The court takes the opposite view. That there are range of reasons as to why women are prohibited to work in night.
Besides safety, their obligations to their children family etc
If u don’t take into account social realities, u may end up perpetuate

ANUJ GARG v HOTEL ASSOCIATION OF INDIA, (2008) 3 SCC 1

Facts–

In this case, S.30 of the Punjab Excise Act has been challenged. The section prohibited the employment of any man under the age of 25 years and any woman, in any part of an establishment in which liquor or any other intoxicating drug was being consumed. The Court prima facie observed that the challenged provision was a pre-constitution law i.e. the section had come into force before Article 14 and Article 15 (sex equality) was guaranteed as a fundamental right under the Constitution of India.

Held–

One of the few contentions argued was that the legislation was essential to ensure the “security” of women, to which the Court observed the following:
1. “The present law ends up victimizing its subject in the name of protection. In that regard the interference prescribed by state for pursuing the ends of protection should be proportionate to the legitimate aims.”
2. The Court also brought in the “anti-stereotyping principle” which is the foundation of American jurisprudence on sex equality. It is important to note two cases in particular, that the Court has referred to-
3. Frontiero v. Richardson: The issue at hand was a statute that allowed service-members to claim additional benefits if their spouse was dependent on them. A male claimant would automatically be entitled to such benefits while a female claimant would have to prove that her spouse was dependent on her for more than half his support. The Court struck down this statute stating that the legislation violated the equal protection clause of the American Constitution.
  1. “Traditionally, [sex] discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage… [for example, that] the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator… As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes.”
  2. Essentially, if the justification for a classification based on sex, and one that imposed unequal benefits and burdens, rested upon “stereotypes” of the role of men and women in society, the classification was unconstitutional.
4. Note that the doctrine works both ways: in Mississippi University, the Court struck down a females-only admissions policy to nursing school, holding that in denying admission to equally qualified male applicants, it rested on stereotypical notions about nursing being a “woman’s job”.
5. US v. Virginia: Virgin Military Institute (VMI), whose mission was to produce “citizen-soldiers”, ironically did not admit women. The Court once again held that statutes/governmental policies based on “fixed notions concerning the roles and abilities of males and females” were unconstitutional. And that generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.
6. In essence, what the Court has tried to ascertain that traditional cultural norms embodied in the legislation cannot prevail over constitutionally guaranteed privacy rights. In doing so, would be a detriment to the democratic society, that strives to be progressive. Cultural norms that consider the abilities of women inferior to those of men should be discouraged and abolished. Moreover, to the extent where they portray as governmental policies, such norms should be held constitutionally invalid. Which is basically to juxtapose the Frontiero-VMI holdings to the Indian context.
7. Arguing in favour of transformative constitutionalism, the Court held said legislation as void and unconstitutional. This is arguably one of the most progressive judgments that clarifies on sex-equality jurisprudence by enforcing the fundamental rights guaranteed under the Constitution against stereotypical norms.
8. This is one of the few cases that explicitly upholds the jurisprudence of sex equality and promotes for equal opportunities at workplace for women. The case consists of an extensive debate on the doctrine of “strict scrutiny” into India.
9. The Court in this case adopts three isolated forms of review;

strict scrutiny (in US)

intermediate scrutiny
Proportionality review(Now in India) should be pursuing legitimate aim, rational nexus with the object, is it necessary to advance that aim, whether all things considered, this is kind of means that can be permitted in a modern democracy.
Although it is unclear in the judgment as to which review the Court finally promotes, this case is a step forward in recognising sex equality and eliminating old cultural norms embodied in different statutes that conform patriarchal values.
In strikingly progressive language, then, the Court observed:
1. “Therefore, one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart…” (Para 40)

Consequently:

“It is state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 30) from societal conditions would be oppressive on the women and against the privacy rights.” (Para 41)
These two paragraphs are absolutely crucial. Essentially, the Court holds that if there is a clash between “traditional cultural norms” and constitutionally-guaranteed privacy rights – that is, cultural norms that define and delimit the choices of women because of assumptions about their worth or abilities – and privacy rights, that guarantee a zone of autonomy and freedom of choice – then the latter must prevail. More to the point, insofar as governmental policy is based on the aforesaid cultural norms, it is constitutionally invalid. This is, in substance, the Frontiero-VMI doctrine transposed.
“In short, the fundamental justification for the decision [of not allowing women to serve as prison guards] is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, ‘the pedestal upon which women have been placed has upon closer inspection, been revealed as a cage.’” (Para 43)
And immediately after that, the Court made its acceptance of the anti-stereotyping principle explicit:
“The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

NAVTEJ JOHAR v UOI 2018

Chandrachud J-

Facial neutrality: through the looking glass
1. The moral belief which underlies Section 377 is that sexual activities which do not result in procreation are against the ‘order of nature’ and ought to be criminalized under Section 377. The intervenors submit that Section 377, criminalizes anal and oral sex by heterosexual couples as well. Hence, it is urged that Section 377 applies equally to all conduct against the ‘order of nature’, irrespective of sexual orientation. This submission is incorrect.
2. In NALSA this Court held that Section 377, though associated with specific sexual acts, highlights certain identities.
3. In Naz, the Delhi High Court demonstrated effectively how Section 377 though facially neutral in its application to certain acts, targets specific communities in terms of its impact: “Section 377 IPC is facially neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community. The fact is that these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class.
4. Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself.”
5. To this end, it chronicled the experiences of the victims of Section 377, relying on the extensive records and affidavits submitted by the Petitioners that brought to fore instances of custodial rape and torture, social boycott, degrading and inhuman treatment and incarceration. The court concluded that while Section 377 criminalized conduct, it created a systemic pattern of disadvantage, exclusion and indignity for the LGBT community, and for individuals who indulge in non-heterosexual conduct.
6. Jurisprudence across national frontiers supports the principle that facially neutral action by the State may have a DISPROPORTIONATE IMPACT upon a particular class.
7. In Europe, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 defines ‘indirect discrimination’ as:“where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”
8. In Griggs v Duke Power Co., the US Supreme Court, whilst recognizing that African-Americans received sub-standard education due to segregated schools, opined that the requirement of an aptitude/intelligence test disproportionately affected African-American candidates. The Court held that “The Civil Rights Act” proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
9. In Bilka Kaufhaus GmbH v. Karin Weber von Hartz, the European Court of Justice held that denying pensions to part-time employees is more likely to affect women, as women were more likely to take up part-time jobs. The Court noted:
10. “Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex.”
11. The Canadian Supreme Court endorsed the notion of a disparate impact where an action has a disproportionate impact on a class of persons.
12. In Andrews v. Law Society of British Columbia, the Court noted: “Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”Thus, when an action has “the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society”, it would be suspect.
13. In City Council of Pretoria v. Walker, the Constitutional Court of South Africa observed: “The concept of indirect discrimination, … was developed precisely to deal with situations where discrimination lay disguised behind apparently neutral criteria or where persons already adversely hit by patterns of historic subordination had their disadvantage entrenched or intensified by the impact of measures not overtly intended to prejudice them. In many cases, particularly those in which indirect discrimination is alleged, the protective purpose would be defeated if the persons complaining of discrimination had to prove not only that they were unfairly discriminated against but also that the unfair discrimination was intentional. This problem would be particularly acute in cases of indirect discrimination where there is almost always some purpose other than a discriminatory purpose involved in the conduct or action to which objection is taken.” (Emphasis supplied)
Deconstructing the polarities of binary genders
1. Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles. The notion that the nature of relationships is fixed and within the ‘order of nature’ is perpetuated by gender roles, thus excluding homosexuality from the narrative. The effect is described as follows:
2. If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377 the effect is to entrench the belief that homosexuality is an aberration that falls outside the ‘normal way of life.’
3. An instructive article by Zachary A. Kramer, notes that a heterosexist society both expects and requires men and women to engage in only opposite-sex sexual relationships. The existence of same-sex relationships is, therefore, repugnant to heterosexist societal expectations. Kramer argues that: “Discrimination against gays and lesbians reinforces traditional sex roles. The primary thrust of such discrimination is the gender-based stigmatisation of gays and lesbians, deriving from the idea that homosexuality departs from traditional gender roles and that “real” men and women should not be attracted to a member of the same sex. This portrayal relies heavily on what Bennett Capers calls the “binary gender system.”

Article 15(2) cases-

Indian Medical Association v Union of India 2011 7 SCC 179

Facts-Ex-army personals start their own private unaided non-private college affiliated to IP University having 100% reservation for Army personal.

Held-If u follow a policy that will have disproportionate impact on one of the prohibited markers.

ARTICLE 15-Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
1. (a) access to shops, public restaurants, hotels and places of public entertainment; or
2. (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
Nothing in this article shall prevent the State from making any special provision for women and children.
Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and the STs. (General) (Can be through Government Orders GO?)
Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SCs or the STs in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. (More Specific) doesn’t talk about private employment.

Are the prohibited categories in 15(1) are closed ended or open ended?

Court in Anuj Garg said that ‘or any other like factor’

Same was carried in NAZ foundation case and NALSA cases.

ARTICLE 16-EQUALITY OF OPPORTUNITY

ARTICLE 16-Equality of opportunity in matters of public employment.

There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of anybackward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. Suppose 12 reserved seats, 8 seats get filled 4 remained vacant. So these 4 reserved seats can be carried forward to next year. So next year they will be 16 reserved seats.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. (Temple Care?)

THE STATE OF MADRAS v CHAMPAKAM DORAIRAJAN 1951

Facts-

By virtue of certain orders issued prior to coming into force of the Constitution,-popularly known as ‘Communal G.O.’ – seats in the Medical and Engineering Colleges in the State of Madras were apportioned in the following manner:
1. Non-Brahmin (Hindus)-6, Backward Hindus-2, Brahmin-2, Harijan-2, Anglo Indians and Indian Christians-1, Muslims-1.
2. Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by Smt. Champakam as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India.
3. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. The argument is that having regard to the provisions of Article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities.

Issue–

Held–

A Special Bench of 7 Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on the ground of caste.
1. Das J-If the arguments founded on article 46 were sound then clause (4) of article 16 would have been wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted in article 16, the omission of such an express provision from article 29 cannot but be regarded as significant.
2. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause (4) of article 16.
3. Take the case of the petitioner Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste.
4. It is argued that the petitioners are not denied admission only because they are Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seat out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made.
5. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under article 29(2). In this view of the matter, we do not find it necessary to consider the effect of articles 14 or 15 on the specific articles discussed above.
After this Parliament brings an amendment and adds 15(4) to Article 15.

Article 46-

Article 340-

Article 330-338-

15(4) came through first amendment.
16(4) was already there and originally included minorities as well.

M.R. BALAJI AND ORS. v STATE OF MYSORE 1962

Facts–

Since 1958 the State of Mysore has been endeavouring to make a special provision for the advancement of the socially and educationally backward classes of citizens in the State of Mysore under Article 15(4) of the Constitution, and every time when an order is passed in that behalf, its validity has been challenged by writ proceedings.
1. This Order begins with the observation that the Nagan Gowda Committee has come to the conclusion that in the present circumstances, the only practicable method of classifying the Backward Classes in the State is on the basis of castes and communities, and it has specified the criteria which should be adopted for determining the educational and social backwardness of the communities. The two criteria specified in the report are then set out. The order then expresses the State’s concurrence with the proposal made by the Committee that the Backward Classes should be sub-divided into two categories-Backward and the More Backward, and it adopts the test laid down by the report in that behalf. This approach, according to the order, is realistic and practicable. On the question as to the communities which should be treated as backward, the State made some variations in the recommendations made by the Committee. It held that Lingayats, and Bhunts who formed part of Vokkaligas, should be treated as backward. In that connection, the State noticed the fact that the recommendation of the Committee in respect of the said two communities was not unanimous, and it observed that a large percentage of Lingayat population lives in rural areas and most of them are engaged in agriculture and manual labour and suffer from all the consequences of illiteracy and poverty. In regard to the Bhunts, the State thought that they could not be distinguished from the rest of the Vokkaligas. The order then adds that Satanis, Nayars and Zoreastrians whose average according to the educational test prescribed by the Committee was 7 per thousand of population (whereas that of Lingayats is 7. 1) need not be treated as backward.
2. The order then examines the question as to the percentage which should be reserved, and it rejects the Committee’s recommendation of reservation of 68% all-told on the ground that such a large percentage of reservation would not be in the larger interests of the State. That is why, according to the order, 48% was fixed as the total reservation in favour of the Backward Classes, the Scheduled Castes and Scheduled Tribes together; that means, 30% was reserved for the Backward Classes. Annexure I to this order gives a list of 81 Classes and 135 More Backward Classes.
3. On July 31, 1962, the State passed the impugned order which supersedes all previous orders made by the State under Art. 15(4) for reservation of the seats in favour of the Scheduled Castes and Scheduled Tribes as well as the Backward Classes.
4. The result of this order is that 68% of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions specified in the order passed on July 10, 1961 is reserved, and only 32% is available to the merits pool.
5. Out of the 23 petitioners, 6 had applied for admission to the Pre-professional Class in Medicine in the Medical Colleges affiliated either to the Mysore University or to the Karnataka University. According to the petitioners, but for the reservation made by the impugned order, they would have been entitled to the admission in the respective colleges for which they had applied. As a result of the reservation made by the said order, students who have secured less percentage of marks have been admitted, but not the petitioners. That, in brief, is the petitioners’ grievance and they urge that the impugned order which has denied them the facility of admission in the respective colleges is void under Arts. 15(1) and 29(2) and should not be enforced against them.

The petitioners’ case is

That the impugned order which has been passed under Art. 15(4) is not valid because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of citizens in the State is unintelligible and irrational, and the classification made on the said basis is inconsistent with and outside the provisions of Art. 15(4).
1. That the extent of reservation prescribed by the said order is so unreasonable and extravagant that the order, in law, is not justified by Art. 15(4) and, in substance, is a fraud on the power conferred by the said Article on the State.
These allegations are denied by the State and it is urged on its behalf that the classification made is both rational and intelligible and the reservation prescribed by the order is fully justified by Art. 15(4).
Issue-The contention that the order is a colourable exercise if the State’s power and amounts to a fraud on the Constitution is disputed.

Held–

Gajendragadkar J-The problem raised for our decision by the present petitions involves the consideration of sociological, social and economic factors, and so, before dealing with the contentions raised by the parties before us it is necessary to set out briefly the material which has been adduced before us. On January 29, 1953, the President appointed the Backward Classes Commission by virtue of the power conferred on him under Art. 340(1) of the Constitution.
1. According to the Commission, the relevant factors to consider in classifying Backward Classes would be their traditional occupation or profession; the percentage of literacy or the general educational advancement made by them; the estimated population of the community, and the distribution of the various communities throughout the State or their concentration in certain areas. The Commission also thought that the social position which a community occupies in the caste hierarchy would also have to be considered, as well as its representation in Government service or in the industrial sphere.
2. The Committee proceeded to recommend that in all Science, Engineering, Medicine, Agriculture, Veterinary and other technical institutions, a reservation of 70% of the seats should be made for qualified students of Backward Classes.
3. The Central Government apparently did not feel satisfied about the approach adopted by the Commission in determining as to who should be treated as Backward Classes under Article 15(4).
4. It would thus be clear that the Committee approached its problem of enumerating and classifying the socially and educationally backward communities on the basis that the social backwardness depends substantially on the caste to which the community belongs, though it recognised that economic condition may be a contributory factor.
5. According to the Committee, the entire Lingayat community was socially forward, and that all sections of Vokkaligas, excluding Bhunts, were socially backward. With regard to the Muslims, the majority of the Committee agreed that the Muslim community as a whole should be classified as socially backward. The Committee further decided that amongst the backward communities two divisions should be made (i) the Backward and (ii) the More Backward. In making this distinction, the Committee applied one test. It enquired : “Was the standard of education in the community in question less than 50% of the State average ? If it was, the community should be regarded as more backward; if it was not, the community should be regarded as backward.” As to the extent of reservation in educational institutions, the Committee’s recommendation was that 28% should be reserved for backward and 22% for more backward. In other words, 50% should be reserved for the whole group of backward communities beside 15% and 3% which had already been reserved for the Scheduled Castes and Scheduled Tribes respectively.
6. The decision of the Madras High Court was confirmed by this Court in appeal, on the ground that the fundamental rights guaranteed by Articles 15 and 29(2) were not controlled by any exception, and that since there was no provision under Art. 15 corresponding to Art. 16(4), the impugned order could not be sustained. It was directly as a result of this decision that Art. 15 was amended and Art. 15(4) was added. Thus, there is no doubt that Art. 15(4) has to be read as a proviso or an exception to Articles 15 and 29(2). In other words, if the impugned order is justified by the provisions of Art. 15(4), its validity cannot be impeached on the ground that it violates Art. 15(1) or Art. 29(2). The fundamental rights guaranteed by the said two provisions do not affect the validity of the special provision which it is permissible to make under Art. 15(4). This position is not and cannot be in dispute.
7. The first argument on behalf on the petitioners is that it is not competent to the State to make an order under Art. 15(4) unless a Commission has been appointed under Art. 340(1) and a copy of the report of the said Commission is laid before the House of Parliament under Art. 340(3).
8. Then it is urged that even if special provision can be made by the State under Art. 15(4), the said provision must be made not by an executive order by the legislation.
9. In considering the scope and extent of the expression “backward classes” under Art. 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who are backward in relation to the most advanced classes of the society should be included in it. In such relative tests were to be applied by reason of the most advanced classes, there would he several layers or strata of backward classes and each one of them may claim to be included under Art. 15(4). This position is not disputed before us by the learned Advocate-General for the State. The backwardness under Art. 15(4) must be social and educational. It is not either social or educational, but it is both social and educational; and the takes us to the question as to how social and educational backwardness has to be determined.
10. The group of citizens to whom Article 15(4) applies are described as ‘classes of citizens’, not as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank or caste.
11. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible.
12. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity.
13. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves.
14. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these group in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Poverty, Occupation and Habitation are important indicators.
15. The next question to consider is in regard to the educational backwardness of the classes of citizens. The Nagan Gowda Report and the impugned order proceed to deal with this question on the basis of the average of student population in the last three High School classes of all High Schools in the State in relation to a thousand citizens of that community. On the figures supplied to the Committee which admittedly are approximate and not fully accurate, the Committee came to the conclusion that the State average of student population in the last three High School classes of all High Schools in the State was 6.9 per thousand. The Committee decided that all Castes whose average was less than the State average of 6.9 per thousand should be regarded as backward communities, and it further held that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more backward classes.
16. If the State average is 6.9 per thousand, a community which satisfies the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50% of the State average are obviously educationally backward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. Even after increasing the State average to 7, the position with regard to Lingayat community was that its average of student population was 7.1 per thousand according to the Committee’s calculations and according to the decision of the State 7, and yet the Lingayats as a community have been held to be an educationally backward class of citizens under the State order.
17. In regard to the Muslims, the majority view in the Committee was that the Muslim community as a whole should be treated as socially backward. This conclusion is stated merely as a conclusion and no date or reasons are cited in support of it. The average of student population in respect of this community works at 5 per thousand and that, in our opinion, is not so below the State average that the community could be treated as educationally backward in the State of Mysore.
18. The result of the method adopted by the impugned order is that nearly 90% of the population of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4).
19. When Art. 15(4) refers to the special provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, THE FUNDAMENTAL RIGHTS OF THE CITIZENS CONSTITUTING THE REST OF THE SOCIETY WERE TO BE COMPLETELY AND ABSOLUTELY IGNORED.
20. The large demand for education may be met by starting larger number of educational institutions vocational schools and polytechnics. But it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society.
21. The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would not affect either the death or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found no complaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades.
22. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4).
23. The learned Advocate-General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability…..We do not see how it would be possible to sever the invalid provisions of the impugned order.

Devdasan v UOI AIR 1964

Issue was carry forward rule.

They said u cannot breach 50% limit. And hence they struck it down.

STATE OF KERALA v NM THOMAS

Facts–

In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two year grace period for them to gain such qualifications. This was challenged. The key contention of the aggrieved parties was that the classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent, this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for SCs and STs clearly did violate Articles 16(1) and (2).
1. The Kerala Government had, by amending Kerala State and Subordinate Service Rules empowered the Government to exempt, by order, for a specified period, any member or members belonging to Scheduled Castes or Scheduled Tribes and already in service, from passing the test which an employee had to pass as a precondition for promotion to next higher post. Exercising the said power, the Government of Kerala issued a notification granting “temporary exemption to members already in service belonging to any of the Scheduled Castes or Scheduled Tribes from passing all tests (unified, special or departmental test) for a period of two years”. On the basis of the said exemption, a large number of employees belonging to Scheduled Castes and Scheduled Tribes, who had been stagnating in their respective posts for want of passing the departmental tests, were promoted. They were now required to pass the tests within the period of exemption.
2. Out of 51 vacancies which arose in the category of Upper Division Clerks in the year 1972, 34 were filled up by members of Scheduled Castes leaving only 17 for others. This was questioned by Thomas, a member belonging to non-reserved category. His grievance was: but for the said concession/exemption given to members of Scheduled Castes/Scheduled Tribes he would have been promoted to one of those posts in view of his passing the relevant tests. He contended that Article 16(4) permits only reservations in favour of backward classes but not such an exemption. This argument was accepted by the Kerala High Court. It also upheld the further contention that inasmuch as more than 50% vacancies in the year had gone to the members of Scheduled Castes as a result of the said exemption, it is bed for violating the 50% rule in Balaji.

Issue–

Held–

Chief Justice Ray, writing the judgment of the Court, held:
1. “The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. “Consequently:
2. “The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.” (Para 37)
3. The Court thus holds that Article 16(1)’s conception of equality itself includes remedial action to ensure due representation for hitherto excluded classes. No longer, then, is equal treatment to be accorded to individuals; the Court adopts the group-subordination idea of equality, one that locates the site of historical discrimination as the group, and seeks to remedy that by targeting groups.
4. That said, the bar of 16(2) remained, which expressly listed caste as a prohibited basis of classification. The Court’s answer was to accept that 16(2) would instantaneously void such classification (Paragraph 37), but then to perform a sleight of hand (one that would be repeated subsequently) by holding that Scheduled Castes were not the same as castes (under 16(2)), and could fairly be called “backward classes” within the meaning of 16(4) (Para 43) This raises a troubling issue for those situations where this sleight of hand will not be available to the Court. What, for instance, can the Court say if Government wishes to make special provisions in employment for women? 16(2) expressly prohibits classification on the basis of sex, and purely on the logic of N.M. Thomas, 16(2) continues to operate as an absolute bar.
5. In any event, the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an exception to 16(1), allowing the government limited powers to do what it would otherwise be prohibited from doing by virtue of 16(1), but now exists as “one of the methods of achieving equality embodied in Article 16(1).” (Paragraph 46) But this necessarily involves a shift in the nature of equality itself, because until now, 16(1) and 16(4) were considered to embody differing visions of equality: 16(1) was about individuals, and 16(4) – textually – about remedial measures targeted at historically discriminated groups. And now it is that latter logic that governs both 16(1) and 16(4).
6. Justice Mathew conceded that Article 16(1) was about equality for individuals – equality of opportunity. But equality of opportunity, he argued, meant that in distributing a benefit or burden, the State must set those criteria for selection that “people from all sections of the society have an equal chance of satisfying them.” (Paragraph 84) To sharpen the idea, he drew upon Bernard Williams’ famous example: in a certain society, the most prestigious role is that of the warrior, which requires great physical strength. Hitherto, recruitment for this role has been – formally – solely from the wealthy/propertied classes. A reform movement succeeds in removing the formal barrier in favour of equal competition. Nothing changes, however, because the rest of the population is so undernourished by reasons of poverty, that they do not pass the physical requirements of the recruitment test. In other words, the criteria for selection has been changed from wealth to strength, but it so happens that – for obvious reasons – the poor also happen to be weak.
7. Justice Krishna Iyer, in his concurring opinion reiterated the shared vision of equality embodied in Articles 16(1) and 16(4), and added a further ground for the argument by invoking Article 46, of the Directive Principles. While the Directive Principles are, of course, unenforceable, Justice Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect to Article 46. In this way, by invoking the Directive Principles as background, structuring values, helping us select which conception of equality Article 16 embodied (colour-blind, or group-subordination, or something else), Justice Iyer provided the constitutional grounding to Justice Mathew’s philosophical vision of equality.
8. Justice Fazl Ali, in his concurrence, moved away from Justice Mathew’s individual-centric notion in categoric terms. While adopting the same philosophy of equal opportunity, he held:
9. “Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same.” (Paragraph 193)
10. This, as we have seen, is the classic statement of the group-subordination theory of equality. He then adopted Justice Iyer’s argument about the interpretation of Articles 14 and 16 being determined by the Directive Principles (Paragraph 200). Note, however, that Article 46 categorically refers to weaker “sections” of society. If, therefore, the interpretation of Article 16(1) is grounded in Article 46, then it cannot but be taken to be embodying the principle of group-subordination.
11. The last concurring judgment was Justice Beg’s, but he only concurred in the judgment, siding with the majority on the ground that the present case was covered by Article 16(4). On the reasoning, he disagreed, sticking to the past interpretation of 16(4) remaining an exception to 16(1).
12. Justices Gupta and Khanna dissented. Justice Gupta held that Scheduled Castes were, indeed, “castes” within the meaning of 16(2); and that any event, the manner of distinction was not one that was permitted by 16(1). In a detailed dissent, Justice Khanna reaffirmed that 16(4) was an exception, and the legitimating ground for reservations for SCs and STs was found in, and limited to, 16(4). In particular, he held: “There is no scope for spelling out such preferential treatment from the language of Clause (1) of Article 16 because the language of that clause does not warrant any preference to any citizen against another citizen.” (Paragraph 57)
13. Which, as we can see, if framed in explicitly individualistic language. Hammering the point home, he observed in the very next paragraph:
14. “EQUALITY OF OPPORTUNITY IN MATTERS OF PROMOTION MUST MEAN EQUALITY BETWEEN MEMBERS OF THE SAME CLASS OF EMPLOYEES AND NOT EQUALITY BETWEEN MEMBERS OF SEPARATE, INDEPENDENT CLASSES.” (Paragraph 58)
15. In other words, an express rejection of the group subordination principle. And to make it even clearer, he went on to hold:
16. “What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State.” (Paragraph 60)
17. N.M. Thomas, thus, leaves us with a deeply divided Court, one in which each of the seven judges wrote his own opinion, and came to deeply divergent conclusions on a number of issues.

Let us try to sum up:

(1) A majority of five judges concurred in the judgment, and two dissented
1. (2) A majority of four judges held that 16(4) is not an exception, but an “emphatic restatement” of 16(1) – and thus, 16(1) itself permits reservations and preferential treatment
2. (3) Two judges – Fazl Ali and Krishna Iyer JJ – by invoking Article 46, specifically adopted the group-subordination principle of equality in their interpretation of Article 16(1)
3. (4) Four judges (or five, depending on how one interprets Ray CJ’s judgment, which seems to adopt both principles) – that is, Mathew and Beg JJ.’s majority opinions, and Khanna and Gupta JJ.’s dissents – while coming to different conclusions, nonetheless maintained the individual-centric view of Article 16(1)
In essence, therefore, while N.M. Thomas changes the idea of of equality under 16(1), a bare majority upholds the deep philosophy of individual equality that forms the ultimate philosophical basis of it. This, essentially, makes Justice Mathew’s opinion controlling. The point of the Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua groups, but to achieve individual equality, and the use of groups is a convenient mechanism to achieve the end goal of individual equality. This, indeed, comports well with the founders’ vision (as we have seen in previous posts) of an end-goal of a society in which class and other such markers become entirely irrelevant. What Justice Mathew understands is that to achieve a colour-blind society, you might need to take colour into account on the way, in order to ameliorate the continuing negative effects of structural inequalities; the arguments are not novel. Feminists have regularly argued that the end-goal of a society in which gender is irrelevant can only be achieved by taking gender into account on the way, and bringing women to a position where formally making gender irrelevant really means actually making gender irrelevant; and the same with race. What is crucial to note is that none of these arguments lose their ultimate goal of emancipating the individual. Classification is a means to an end, not an end in itself.
The distinction is important, and not just simply to understand what kind of equality our Constitution commits us to, and whether it is a vision that we find inspiring and worth believing in. It is also important because – as we shall see – debates about identifying beneficiary groups (the Mandal Commission and beyond), the bitter fight over the “creamy layer”, and ultimately, how far we are willing to go with reservations (for instance, over-inclusiveness and under-inclusiveness aren’t issues at all if your goal is objective is group equality) – depend upon whether our goal is to make groups equal to each other (and thus, reinforce group identity), or to make individuals equal to each other (and thus, ultimately, dissolve group identities). After N.M. Thomas, the latter view had an edge. In subsequent posts, we shall examine how it would fare in the fraught and divided coming years.

INDIRA SAWHNEY V UNION OF INDIA (UOI) AND ORS 1999

Facts-27% reservation for OBC in post under central government.

Issue–

Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation to posts in services under the State?

No. It’s not an exception.

RESERVATION IS MEANS TO ACHIEVE SUBSTANTIAL EQUALITY.
16(4) is only an example of what is already stated in 16(1).
Reservation is the highest form of affirmative actions. There can be lesser forms as well.
But you cannot completely remove minimum qualifying marks.
What would be the content of the phrase Backward Class in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether backward Classes in Article 16(4) would include the Article 46 as well?
1. Balaji had said that caste cannot be the sole criteria.

Can the extent of reservation to posts in the services under the State under Article 16(4) or, if permitted under Articles 16(1) and 16(4) together, exceed 50% of the posts in a cadre?
Whether the ‘provision’ contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?

Held–

B.P. Jeevan Reddy-

Begins by talking about the broad constitutional objective along with perusal of Article 14, 15, 16, 38, 46, 340, 338,
1. Dr. Ambedkar’s lobbying for the OBC communities.
2. First Backward Class Commission 1951 (Kaka Kalelkar Commission)
3. Second Backward Class Commission 1979 (Mandal Commission)
  1. Rajendran v UOI 1967 to the effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward class of citizens within the meaning of Article 15(4).
  2. As a result of the above exercise, the Commission evolved 11 ‘Indicators’ or ‘criteria’ for determining social and educational backwardness. These 11 ‘Indicators’ were grouped under three broad heads, i.e., Social, Educational and Economic. They are:-

A. Social:

(i) Castes/Classes considered as socially backward by others.
1. (ii) Castes/Classes which mainly depend on manual labour for their livelihood.
2. (iii) Castes/Classes where at least 25% females and 10% males above the state average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
3. (iv) Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational:

(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
1. (vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
2. (vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.

C. Economic:

(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
1. (ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.
2. (x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
3. (xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
All the Social ‘Indicators’ were given a weightage of 3 points each. Educational ‘Indicators’ a weightage of 2 points each and Economic ‘Indicators’ a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
Chapter-XII deals with ‘Identification of OBCs’. It says that it applied several tests for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services.
The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities – to give them a share in the administrative apparatus and in the governance of the community.

Perusal of SC decisions

Perusal of US SC decisions.
Further, if one keeps in mind the context in which Article 16(4) was enacted it would be clear that the accent was upon social backwardness. It goes without saying that in Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty which in turn breeds and perpetuates the social and educational backwardness. They feed upon each other constituting a vicious circle. It is a well known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes.

‘Means’ test and ‘creamy layer’:

‘Means test’ in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as “the creamy layer” argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class – as forward as any other forward class member -and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class.
We may now summarise our discussion under Question No. 3.
1. (a) a caste can be quite often a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons are socially backward. They too represent backward social collectives for the purposes of Article 16(4).
2. (b) Neither the Constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. If can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be down with reference to castes among, and along with, other groups, classes and sections of people. One can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does – what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country’s population, one can well begin with it and then go to other groups, sections and classes.
3. (c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes,
4. (d) ‘Creamy layer’ can be, and must be, excluded.
5. (e) It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens.” The accent in Article 16(4) appears to be on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. The classes contemplated by Article 16(4) may be wider than those contemplated by Article 15(4).

ASHOK KUMAR THAKUR (Extension of OBC reservation to educational institutions)

Court rejected test of strict scrutiny of US in case of affirmative action.
In case of strict scrutiny, presumption of constitutionality does not apply.
Concept of suspect classification are against constitutional scheme of India because affirmative action has been expressly provided in the constitution.

TMA PAI case-

Education is like an employment

T Murlidhar Rao v State of AP 2010 (7 Judge HC Bench) (Lose example of strict scrutiny)
Facts-AP enacted 4% reservation for SEBC of Muslims both for purposes of employment and education. This was in addition to 27% OBC reservation.
Issue-Challenged on the ground that there is no enough evidence to support backwardness amongst Muslims.

Held–

The recommendations set out in the report of AP commission for Backward classes are unsustainable due to-
1. Failure of commission to evolve and spell out….Muslim community

Failure of …

Failure

The commission had substantially relied on the data collected and observations made by the AnSi study….conclusion.

Sanjeet Shukla v Maharashtra 2014

Facts-State by ordinance passes reservation for Maratha communities and certain sub-castes of Muslims.

Issue–

Held–

Court employed same reasons as in T Murlidhar to reject Maratha reservation.
1. But justified Muslim reservation by citing reports of Sachar Committee.

Ram Singh v UOI (Jat reservation)

Facts-Centre included Jats under OBC category. NCBC had rejected the claims of backwardness of Jats bout govt. rejected report of NCBC.

Issue–

Held–

State provided decades old data, so court said that you have to provide latest data.

Dayaram Verma v State of Gujarat (Patel reservation)

Facts-Gujarat govt. provided 10% reservation for economically weaker section.

Issue–

Held–

There is no other power (except 15(4) and 16(4) conferred on the state for effecting reservation in favour of any category…..article 14 of the constitution of India.
1. Further the economic criteria being fluctuating issue, the same cannot be the basis for any classification for the purpose of affirmative action for admission to educational institution and while filling up the posts in the services under the state.
2. State has not provided any empirical data to support 10% reservation for these categories.
3. Moreover economic criteria is a vague term as a person’s economic position keeps fluctuating throughout his life.

M Nagraj v UOI (164A providing for reservation in promotion)

Facts-Gujarat govt. provided 10% reservation for economically weaker section.

Issue–

Held–

The Court ends up burdening reservations in promotion with consequential seniority far more than the other tests. They did not strike down the provision either, but for exercising power under it, it is not sufficient to satisfy the requirements of 16(4A), but also demonstrate the following three things:
1. Backwardness: In Indira Sawhney, obiter said that creamy layer not applicable to SC and ST. Nagraj is criticised for bringing in creamy layer for SC and ST through the backdoor. 16(4A) only applicable to SC and ST and court introduced additional criteria of backwardness apart from the SC and ST status.
2. Inadequacy of representation (extra baggage, already built into the provision in 16(4A))
3. Overall efficiency: Stems from Art.335, which is now elevated to the status of acting as a check on constituent power. See marginal note of Art.335. “Journey of Art.335 is now complete”-Anup. This makes Nagraj an extremely problematic decision.
4. Whether a reserved category person can compete in general category or only his category?
  1. For example, in a 100 post, under the current reservation, SC can compete in 65%, ST can compete in 57%, OBC can compete in 77% and General can compete in 50%.
  2. Court said that if reserved candidate compete in general seat, then his candidature will not be counted in reserved category.

Reservation for entire cadre?

For example if out of 30 seats 15 seats are reserved but they remain vacant.
1. So years upon year, there will be 30 vacant seat. So can u have entire cadre reserved in a given year?
2. Court in SK Sabarwal case said that, u have to follow the ROOSTER SYSTEM.
  1. For example-In a given year there are 100 seats, 50 seats are marked general category and 27 for OBC.
  2. So when when general category employee retires, the vacant seat has to be filled by general candidate only. SC seats has to be filled by SC candidate only. Mind that in case of general vacant seat, its not the case that only general category will compete under that, all can compete, but there will be no reservation for that.

Court in Nagraj reiterated this point.

So consequential seniority rule is not a problem.
Regarding carry forward rule, court said that u have to have a time gap of (3 years suggestive)
Court upholds the reservation in promotion but with a caution that only to the extent provided in 15(4) and 16(4) and 335. 50% ceiling level and creamy layer and competing reason. But Indra Swahany ruled out creamy layer for SC and ST.
16(4)A provides for reservation in promotion for only SC and ST.
But they don’t mention what is inadequacy of representation. Does it mean proportional to the share of their population.
There is an assumption that reservation will lead to loss of efficiency. But on what basis? No data?
Demand for quantifiable data to support backwardness-Nagraj.

UP Power Corporation v Rajesh Kumar AIR 2012 SC 2728 (also Talks about rooster system)

Facts-UP govt. framed rule for reservation for promotion
Issue-reservation was done without quantifiable data.

Held–

From the aforesaid decision and the paragraphs we have quoted herein above, the following principles can be carved out-

Vesting of power..

Article 16(4)

Each Post… (rooster system)

A bill was introduced in Parliament to deal with the Nagraj case. Was passed in Rajya Sabha in 2012 but yet to be introduced in Lok Sabha. A bill passed by Rajya Sabha do not lapses because Rajya Sabha is a permanent body.

Nagraj was also reconsidered in-

Jarnail Singh vs Lachhmi Narain Gupta 2018

Facts–

Issue–

Whether the case should be referred to larger bench to reconsider Nagraj.
1. Whether criteria of backwardness be applied to SC and ST as well.

Whether creamy layer for ST and SC?

Held–

No creamy layer for ST and SC.
Whole object of reservation is to see that backward class move forward with other citizens. This object is defeated if creamy layer keeps bagging the seats all the time. SO creamy layer for SC and ST as well.
1. Creamy layer is a test of identification of backwardness and not of equality.

U look into inadequacy where?

They say that its cadre.
Problem of creamy layer in SC ST?
SC ST posts are going vacant when there is no creamy layer. If there is a creamy layer, may be all posts will go vacant.

Pramati Educational & Cultural Trust v Union Of India 2014

Facts-15(5) and 21A provided

Issue-Whether Article 15(5) and 21(A) violates liberty?

Held–

15(5) is an enabling provision to give effect to constitutional mandate. Equality is one such mandate.
1. Object is to provide opportunity to large number of backward students.
2. This is limited provision as only talks about reservation for admission in aided and unaided schools.

ARTICLE 19-RIGHT TO FREEDOM

All citizens shall have the right— (Right holder citizens)

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India

(f) to property (REPEALED)

(g) to practise any profession, or to carry on any occupation, trade or business.
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of

Sovereignty and integrity of India,

Security of the State,
Friendly relations with foreign States,
Public order,

Decency or morality, or

in relation to contempt of court, defamation or incitement to an offence.
Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of

the sovereignty and integrity of India or

public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4[the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
Nothing in 1[sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
1. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
2. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Who are citizens?

Part II of constitution.

Originally there was no provision on citizen. It is only after Partition of India that this Part came into being.
By the virtue of being born in India-Jus Soli Principle

By virtue of parents-Jus Sanguine Principle

Citizenship of Naturalisation–
Overseas Citizenship of India–
There was a lot of debate in CA about on what principles the citizenship should be based upon.

Article 9 Imp-

Article 11 Imp-Absolute Power vested in Parliament to determine citizenship.
In exercise of its power under Article 11 passes Citizenship Act 1955, get import revision in 1986 and 2004.

S.6A of Citizenship Act-

Assam Accord 1986-

Those who entered Assam between 1951 and 1961 be conferred rights of residence and voting (in effect, citizenship), those who came between 1961 and 1971 be dispersed to other states of India, and those who came after 25 March 1971 (the date on which Bangladesh declared itself a sovereign state) be deported.

Foreigners Act 1945-

If there is a question about one’s citizenship, the burden is on the person to prove that.

Illegal Migrants determination by Tribunals Act

Applicable only to Assam. State has to show that this person is not a citizen
Gets challenged in SC in 2005-06 by Sarbananda Sonowal in the ground that it places too onerous burden on state to detect illegal migrants. Unreasonable classification compared to rest of India.
SC says, influx of migrants so severe that Assam facing situation like external agitation and internal disturbance.

Assam Public Works v Union of India WP Civil 274 of 2009 (ongoing case in SC on NRC)

SC said that since govt. didn’t updated the NRC, so SC is going to coordinate that.
Challenge to constitutionality of S.6A of Act on the ground that it raises citizenship requirement to 1966 but constitution says 1948.
State just raised it to 1966. How? On what basis? Whether amendment?

Assam Sanmilitia Mahasangha v UOI 2015

Whether Article 10 and 11 of constitution of India permit the enactment of S.6A of the citizenship?

Whether…

Bennett Coleman and Co v UOI 1973
Facts–
Govt. brought some regulation requiring limitation on distribution of newsprint. Challenged under 19(1)(a).
1. Govt. said that the object of the law is to ensure equitable distribution of limited imported newsprint so that it is not grabbed by some big players and in doing so if it incidentally impacts someones Article 19(1)(a) right, then there is no problem.

Held–

First it it should be seen what is the impact of the law on rights. Is it violating 19(1) right? At this time object of the law is immaterial.

Conditions of Article 19-

Am I Citizen of India?
1. Has my right has been infringed?
2. Has that infringement been procedure established by law?

In the interest of/purposes.

Whether reasonable restriction?
Same conditions are for Article 21 as well.
A shareholder is entitled to protection of Article 19. That individual right….action upon their rights.
You have to look at the impact of the Act and not the object of the Act.

Kharak Singh v UP AIR 1963

Facts–

KS is a dacoit and convicted and served his sentenced. When he comes out of Jail, he is put under surveillance by some regulation of UP.
1. He said that all that was impacting his right to movement under Article 19(1)(d)
2. UP says that he is allowed to move freely and that restriction has been placed in the interest of general public.

Held–

Majority says that right to move has not been violated.
1. Court rejects the argument of psychological inhibition on movement.
2. They also reject the Privacy argument (overruled in Puttuswamy) But on surveillance, Kharak Singh continues to be a law.

Union of India v Naveen Jindal 2004

Facts–

Naveen Jindal challenges the Flag provision of India which inhibited citizens from flying Indian flag.
1. Argued that code infringed his speech and expression right.

Held–

Court said that flag code has no statuary backing. Its only executive instruction. All variations of law under Article 13 have statutory backing.

Romesh Thapar v State of Madras and Brij Bhushan v State of Delhi.

Security of State is sub-part of broader Public Order which signifies wider connotation. It means state of tranquility which prevails in a society as a result of internal regulation.

State of Karnataka v Unaided English Medium Schools 2014

Karnataka passed a law that child can only be taught in the mother tongue. Challenged under 19(1)(a) for violating parent’s choice of language for their kids.

Court upheld challenge.

What is the meaning of phrase-‘in the interest of’?

Superintendent Central Prison, Fatehgarh v Ram Manohar Lohia 1960

There is necessity for intimate connection between the Act and the Public order sought to be maintained by the Act.

WHAT ARE REASONABLE RESTRICTIONS?

Pathumma v State of Kerala 1978 (on 19(1)(f)

In judging the reasonableness of the restrictions imposed by the clause (5) of Article 19, court has to bear in mind the DPSP.
Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
It has also been pointed out by this court that in order….
To judge the reasonableness of a restriction, court has to examine the nature….Article 19

State of Madras v VG Row 1952 (Proportionality Standard?)

Facts-Section 15 (2) (b) of the, 1908, as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an “unlawful association” an association “which has been declared by the State by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) (to be specified in the notification) that such association (i) Constitutes a danger to the public peace, or (ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object.

Issue-These criteria were contested to be too wide

Held–In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict.

The test of reasonableness, wherever prescribed should be applied….judicial verdict.

In Europe and US, test of restricting FR is proportionality. Later the Wednessburry test etc.

Chintaman Rao v MP 1958

The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the, freedom guaranteed in Article 19 ( 1 ) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.

Narendra Kumar v UOI AIR 1960

In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.

The court has to see…naturally arise.

So far as the nature of reasonableness…public good.

WHAT IS THE PROPORTIONALITY TEST?

There are two ways of looking at any rule

Bright line rule-u are either in compliance or non-compliance of that rule. There is no question of in between
Norms and Standards-U try to adhere to them as far as possible. Standards are optimisation requirement

MODERN DENTAL COLLEGE V STATE OF MP 2016 (HOW TO DO PROPORTIONALITY)

Facts-The Petitioner’s had challenged the constitutional validity Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009 framed to regulate private professional educational institutions. The petitioners’ primary contention was that the Act and Rules amounted to excessive interference in the autonomy of private educational institutions, and consequently, violated Article 19(1)(g) of the Constitution. Before the Supreme Court, the primary contention of the Petitioners was that “by the impugned legislation the State seeks to wipe out the choice available with the appellants institutions to devise their own admission procedure. And that the provision of reservation violated the judgment of the Supreme Court in Ashoka Kumar Thakur’s Case.

Held-The petitioners’ arguments were rejected by the Supreme Court, which upheld the judgment of the High Court and the constitutional validity of the Act and Rules. The Court started by observing that “though education is now treated as an ‘occupation’ and, thus, has become a fundamental right guaranteed under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as ‘noble’.

Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged.” (paragraph 30) Leaving aside for the moment the general merits of this view, effectively, the argument here seems to be that insofar as an educational institution is engaged in profiteering, it cannot invoke the protection of Article 19(1)(g) to start with. If this is the case, then there is no need to carry out an Article 19(6) analysis.

Put briefly, the Court follows T.M.A. Pai in holding that the freedom of occupation of educational institutions under Article 19(1)(g) includes the freedom to admit, to set up a reasonable fee structure, to appoint staff, and to take action in cases of dereliction of duty (paragraph 33). T.M.A. Pai had then held that in the case of professional institutions, the admissions criteria must be “fair, transparent and non-exploitative” (paragraph 36), with the overriding consideration being merit. For this purpose, T.M.A. Pai had permitted the government to frame regulations (paragraph 37). Furthermore, P.A. Inamdar had held that the constitution of Committees for monitoring admissions and fee structure, in order to prevent exploitation, was constitutional (paragraph 42). Post-audit measures were insufficient for this task (paragraph 43).

NOTE:-This, however, is merely an assertion. Proportionality would require the Court to actively consider alternative options, and ask whether they were adequate to meet the goal of ensuring “fair, transparent, and non exploitative”procedures.

Consequently, while parts of the reasoning of the Court’s judgment are open to serious question, there are two important things that the judgment does. First, it places proportionality at the centre of the “reasonableness” enquiry, and lays the groundwork for the future development of jurisprudence along these lines. And secondly, it initiates a shift in the discourse from the charitable character of education, to its role as a public utility. It remains to be seen whether either of these developments will have an impact in the coming years.

A limitation of a constitutional right will be constitutionally permissible if-

It is designated for a proper purpose.

The measure undertaken to effectuate such limitations are rationally connected to the fulfilment of that purpose.
The measures undertaken are necessary and less restrictive approach is available
There needs to be proper relation…constitutional right.

Burden of proof lies on State to shown that justifications are reasonable and proportionate. Petitioner has to only show the infringement of FR.

Because right is the norm and restrictions are exceptions.

But in other articles such as Article 14 there lies presumption of constitutionality.

PUTTASWAMY v UNION OF INDIA (AADHAAR CASE)

Test of Proportionality was affirmed in the Aadhar case where Justice Sikri laid down a four-fold test to determine proportionality:

A measure restricting a right must have a legitimate goal (legitimate goal stage).
It must be a suitable means of furthering this goal (suitability or rationale connection stage).
There must not be any less restrictive but equally effective alternative (necessity stage).
The measure must not have a disproportionate impact on the right holder (balancing stage).

Future constitutional cases are going to be based on constitutionality.

MP Vyapam law controversy also relates to Proportionality.

Vyapam laid down common admission test for admission to private colleges. Law provided for reservation etc. Was challenged on the basis that its restrict the rights of private colleges. Challenge was based on TMA Pai and Inamdar case.

Court said that object of law is in interest of larger public but did not uphold it.

How reasonableness different from proportionality?

No exhaustive formula in test of reasonableness. No alternative measure equally efficacious test in reasonableness.

Difference between restriction and prohibitions?

In Narendra Kumar, state had put restrictions on import of non-ferrous material to eliminate middlemen. Petitioners challenged it for violating Article 19(1)(g) right and that it placed a complete prohibition on petitioners right to deal in copper.

Court said the greater the restriction, the stricter the scrutiny of court. But there is no problem in complete prohibition but it has to be reasonable.

Why free speech?

Market place of ideas

Betterment of society

Democratic advancement
Inherent social good.

Difference between scope of right and extent of that right.

If right to life does not include the right to die, there is no question arise of any statute prohibiting right to die.

US first amendment regarding free speech is absolute. So debate in US is regarding what falls in the scope of free speech and whats outside.

In India, debates are around the limitation of right.

Just because I have right to free speech does not mean one cannot criticise the content of my speech. Does that also include ‘trolling’?

19(1)(a)-to freedom of speech and expression.

Expression is wide-includes speech, art, terrorism any other conduct or behaviour seeking to communicate something.

Question what sort of behaviour and conduct is covered under expression?

Texas v Johnson-Right to speech and expression under 1^st amendment protects the burning of flag.

US v O’Brian– O’Brian and his friends burnt the draft of the Vietnam war. Court said that where speech and non-speech are so interlinked, u can regulate the non-speech element even though it ends up regulating the free-speech element. So prohibition on burning public document was justified even though it prohibited free speech of disapproval of Vietnam war.

In India, we undertake range of activities to express political opinion and disapproval. Court has to look which one of them gets protection and which not.

Bharat Kumar v State of Kerala 1997-relating to ‘Bundh’ Petitioner asked that it be banned as it impacts their freedom of movement and trade. Court said by Bundh, they want to everything to come to a standstill.

‘When the organisers of a bundh call for a bundh they clearly express their intention that they expect all activities to come to a standstill on the day of bundh…If the intention is to prevent the milk supply….supporters of the bundh’ No right under Article 19 to call for a bundh’

Law as it stands today does not allow ‘bundh’

Difference between strike, hartal and bundh-Bundh is basically cessation of all activities.

Harish Uppal v UOI-lawyers don’t have right to strike at work because litigants have right to speedy trial.

INSTANCES HOW SC HAS DEALT WITH ARTICLE 19

Does right to free speech includes right not to speech?

Can state compel someone to speak?

Bijoy Emmanual v State of Kerala 1987

Jehova’s witness-does not participate in ant act which involves praise on anyone except God. In their morning assembly they stand respectfully but do not sing the national anthem and as a result they were expelled from school.

Court said that right to free speech includes right to not sing. Fundamental Duties only provides respect of national symbols and by not singing they did not disrespect the law.

Court said that as long as u stand respectfully and do not disturb others from singing, there is no violation of any law.

But more recently, SC said that respect means mandatorily playing national anthem in cinema halls. Though subsequently this order was modified.

UOI v Motion Pictures Association 1999

One of the conditions of cinema licensing was a clause authorising govt. to order screening of scientific or public awareness content before the film.

Court said though it is compulsion, it is not bad. For example, mandatory requirement of awareness labels on cigarette packets is for good purpose.

Compelled speech is not per-se problematic except when it falls under Article 19(2) grounds. Social context of the movies cannot be excluded. Large number of people comes to watch movie.

‘We have to examine whether the purpose of compulsory….required to show.’

In this case, court said that petitioners have not raised any objections on the content.

Does freedom of free speech also includes right to know in order to exercise the right to free speech?

Court said yes. RTI case.

UOI v Association for Democratic Reforms 2002

In order to effectively vote in an election, we need to know some personal details of the candidates. Court agrees.

‘Citizens right to know..is derived from the concept of ‘freedom of speech an expression…..elected by him.’

Then court gave a list of guidelines as to the what kind of information needs to be revealed by the candidates.

PUCL v UOI 2003

Certain amendments to RP Act were challenged. Court reiterated the ADR case.

Is right to vote part of 19(1)?

Act of voting is possibly the most protect free-speech under Article 19(1) as it is the highest form of political expression.

But in ADR case, it was said that it merely a statutory right emanating from RP Act. In PUCL they said that voting is a constitutional right coming from Article 325 and 326. There is difference between right to vote and freedom of voting. Right to vote can be limited by statute. But freedom to vote to the extent of right to vote is covered under Article 19. Once someone is qualified to vote, that person gets the freedom to vote.

Kuldeep Nayar v Union of India 2006 (5J)

Court upholds PUCL reasoning. But PUCL holding is only to extent of difference between freedom of voting and of right to vote. Freedom of voting is FR but only to the extent of right to vote as determined parliament.

In Rajbala and Javed they reiterate the reasoning of these cases.

So right to vote is neither fundamental right, nor constitutional right nor common law right. Isn’t it violation of basic structure?

Is election speech part of free speech?

Article 102(1)(e)-

Parliament in RP Act-

S.123-Corrupt Practices–

(3)-Appeal by a candidate or his agent or by any other person with the consent of a candidate or his…

(3A)-

(4)-

Constitutionality of these provisions have been challenged on the ground that they do not come under 19(2)

Jumuna Prasad Mukhariya v Lachhi Ram AIR 1954

‘Both these provisions, namely sections 12395) and 124(5) ……intra-vires.’

Since right to be elected is not a FR, so one has to abide by rule of election as laid of statute

FR has no bearing on a right like this created by a statute.

Ramesh Yashwant Prabhu 1996

RP Act said that one cannot appeal on religion. Bal Thackery appeals in the name of Hinduism. They challenged those provisions under 19(2) that only when appeal to religion or caste is prejudicial to public order, that it will come under 19(2)

Court rejected that contention by reiterating the Jumuna Prasad.

‘We have construed sub-section (3) of S.123….election campaign’

Arguendo court said that the prohibitions under provision is covered under ‘decency and morality’ and decency and morality has to be construed broadly in the light of us being secular polity.

‘To of the heads mentioned in Art 19(2) are decency or morality. Thus any law which imposes…alone. The words decency or morality do not require a narrow or pedantic meaning to be given to these words…..being decent. Thus the ordinary dictionary meaning of decency..membership of the house.’

This issue comes to a 7 bench of SC in Abhiram Singh v CD Commachen 2017-Court construed the pronoun ‘his’ in 123(3) as candidates and elector. In same way other things have to be construed broadly. Majority said that no appeal in the name of religion or caste. But minority opinion of Chandrachud said that in a society it is quite impossible to advocate for socio-economic upliftment of many communities without taking about their caste.

A lot of justification for right to speech is its value for democracy.

Should commercial speech be prohibited (advertisement)?

In US jurisprudence, they keep looking at what is protected and what is not. But we don’t have such kind of discussion. Bur we had a change of stance-

Hamdard Dawakhana v UOI 1960

Drugs and magic remedies Act was challenged.

‘An advertisement is no doubt a form of speech but its true character….guaranteed by the constitution.’

For purely commercial advertisement restrictions under 19(1g and 19(6) shall be applicable

So every advertisement does not falls under speech and expression which is for furtherance of democratic value.

‘The advertisement in the instant case relate to commerce or trade and not to propagating of ideas; and advertisement…..it is not.

But in Tata Press Ltd v Mahanagar Telephone Nigam 1995, court reversed its opinion. And said that for a democratic press, advertising is necessary. Without advertisement, resources available for expenditure on news would decline which may lead to erosion of quality and quantity. The cost of news to public would increase and thereby restriction its democratic availability.

‘Advertising is considered to be the cornerstone of our economic system….democratic availability.’

‘Advertising..commercial speech.’

Examined from another angle, the public at large…trade consideration.’

This is now the controlling the precedence on this issue.

It is difficult to draw a line between what is commercial value and informational and creative value.

Indian constitution does not mention ‘freedom of press’. It was not a mistake but assumed that press was definitely going to be free in democratic India and is in any way covered under 19(1)(a)

How to regulate the business side of the press without regulating freedom of press-

Express Newspaper v Union of India 1958

Press can be subject to ordinary law but if there is any special law made for dealing only with the media that has to pass the touchstone of Article 19.

How to ensure press is not monopolised by a few-

Sakal Papers v UOI 1962

Paper Price and Page act provided the price that can be charged per set of pages. State said that this was to undercut the monopolistic practices.

‘The right to propagate one’s ideas is inherent in…under 19(2)’

‘The right to freedom of speech and expression is an individual right..aforesaid clause.’

Assuming that speech is protected under 19(1), whether restriction is justified under 19(2)

2 ways in which speech can be restricted-

Before u speak, submit ur speech to us so that we can check whether it violates the restrictions-Prior Restraint.

Censor Board

This kind of restraint is extremely frowned upon.

Brij Bhushan case

But very difficult for government to have such control
You can speak but if violative, face punitive actions

KA Abbas v UOI 1971 (Prior restraint)

Whether films need censorship at all?

There is noting inherently pernicious about pre-censorship.

SEBI v Sahara 2012

Whether court has power to restrain media from publishing anything on a sub-juice matter?

Under contempt of court, such information needs to be false.

Court can pass orders of postponement under Article 129/215 of constitution for limited purpose in the context of administration of justice, rights of individuals to protect them from prejudicial publicity.

SET of subversive Speeches as to whether they are protected under Article 19(1)-sedition, defamation, hate-speech, defamation.

SUBVERSIVE SPEECH

Sedition

Kedarnath Singh case

Heckler’s Veto

S Rangrajan v Jagjivan Ram 1989

A national award winning movie-A Brahmin women colludes with authorities to get SC certificate and finally gets IAS. The message of movie is caste based reservation is bad. Film is denied certification.

‘The problem..powder keg’

Commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. Anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. Expression of though should be intrinsically dangerous to the public interest. State cannot plead its inability to handle the hostile audience problem.

‘We are amused yet troubled…expression.’

Hate Speech

Is covered under various provisions of IPC-153A, 295A,

Likely to cause hatred for a group, generally derogatory about a group.

Neo-Nazis/Far right in Europe contest don’t curtail our opinions but if u think we are wrong then contest that in public.

When should it state regulate it?

When it is false and baseless?

When it is directed towards marginalised group?

What effect does it have on free speech?

Is social sanction better than legal sanction in regulating hate speech? In US

Whether hate should be prohibited or resulting violence from it?

Rationale for non prohibition of hate speech-

Any restriction on FOS is considered bad in a democracy
Hate speech prohibition can end up stifling genuine debate and discussion.
When u start making exceptions for hate speech diverse society like ours, u might end in a very slippery slope by leaving a very few scope for free discussion.

There is something pernicious about hate speech-a person is reviled for being part of a group.

Sometimes that group does not have capacities to hit back at hate speech directed against them.

Ramji Lal Modi v State of UP 1957

Constitutionality of S.295A of constitution was challenged.

‘In the first place Article 19(2)….Article 19(1)(a).’

Court says that 295A only punishes aggravated form of insult to religion and calculated tendency of this aggravated form of insult is clearly to disrupt the public order.

But S.95 and 96 of CrPC puts the burden on individual to prove that their books are innocent.

Sri. Baragur Ramachandrappa v State of Karnataka 2007 3 SCC 11

Controversial book (fictional) on Basveswara forfeited under S.95 of CrPC. Its constitutionality challenged.

Unwarranted and malicious criticism or interference in the faith of others cannot be accepted.

But this reasoning of outraging of one’s feeling has nothing to do with 19(2) restriction.

State of Maharashtra v Sangharaj Damaodar Rupawate 2010

Book on Shivaji portraying Maratha-Brahmin dispute. Publishers prosecuted under S.153A of IPC.

‘If the writing is calculated to promote feelings of enmity or hatred, it is no defence under S.153A of IPC that the writing contains a truthful account of past events.’

OBSCENE SPEECH

Ranjit D Udeshi v State of Maharashtra 1965

Constitutionality of S.292 IPC was challenged.

Obscenity does not have any social value

Hicklin Test

Test of obscenity is whether the tendency of the matter charged as obscenely is to deprive ad corrupt those whose minds open to such immoral influences and into whose hands a publication of this sort may fall.

Obscenity without a preponderating social purpose or profit cannot have the constitutional protection.

Aveek Sarkar v State of West Bengal 2014

Court rejects the Hicklin test.

‘Only those sex-related materials which have a tendency of exciting lustful thoughts can be held to be obscene but the obscenity has to judged from the point of view of an average by applying contemporary community standards.’ (by looking if similar materials already exists in public domain)

They took cue from Roth v US 1957

Devidas Ramachandra Tuljapurkar v State of Maharashtra 2015

‘When the name of Mahatma Gandhi is alluded to or used as a symbol speaking or using obscene words the concept of degree comes in.’

Reiterated the contemporary standards tests and says it becomes applicable more vigour in a greater degree and in an accentuated manner.

R v Butler (Canada Test)

If any women is dehumanised and objectified such obscenity is prohibited. Where obscenity affects one dignity, such obscenity needs to be prohibited.

Defamation

What is standard of defining defamation. Does it include criminal as well as civil defamation?

How it relates to Privacy?

R Rajagopal v State of TN 1994

Book allegedly written by Auto Shankar indicating links with senior officials and Ministers.

Subsequently a press wants to publish it. But there is dispute whether he has written it?

Can A prevent B from writing A’s biography?

Can press be allowed to publish that?

NYT Sullivan

‘The constitutional guarantee requires we think a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ that is with knowledge that it was false or with reckless disregard of whether it was false or not?

Subramanian Swamy v UOI 2016

Whether defamation includes both civil and criminal defamation.

Truth is a defence only when coupled with public good under S.499 IPC.

‘Criminal defamation does not violate free speech and hence constitutional’ Defamation in 19(2) only means civil defamation. Right to reputation is protected under right to life with dignity.

Court adopts the proportionality standard.

Shreya Singhal v Union of India, (2013) 12 SCC 73 VVV IMP CASE

Facts-Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. The women posted their comments on the Facebook. The arrested women were released later on and it was decided to close the criminal cases against them yet the arrests attracted widespread public protest. It was felt that the police has misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.

Petitioner’s contentions-

First and foremost, Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered under Article 19(2).
1. According to them, the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2).
2. Further, in creating an offence, Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are either attempted to be defined or can be defined, the result being that both innocent and guilty persons are roped in. Such persons are not told clearly on which side of the line they fall, and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said section. In fact, a large number of innocent persons have been booked and many instances have been notified to the Court.
3. The enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in Article 19(1) (a).
4. In addition, the said section has a chilling effect on the freedom of speech and expression.
5. Also, the right of viewers is infringed as such chilling effect does not give them the benefit of coming across various viewpoints that could be viewed over the internet.

Issue–

Held–

The Supreme Court then went on to consider four of the eight designated subject matters under Article 19(2), in order to determine whether section 66A had a proximate relationship with any of them-
1. Public Order: This expression was defined by the Supreme Court as signifying “a state of tranquillity which prevails amongst the members of a political society as a result of the internal regulations enforced by the Government which they have established.” [30] The Supreme Court reiterated that ‘public order’ embraced more of the community than the concept of ‘law and order’. Therefore, the question that had to be answered was whether a particular act would lead to a disturbance of the current life of the community, or does it merely affect an individual. [35] The Supreme Court observed that section 66A does not place any real importance on the recipient of the relevant communication, and so it could apply to messages sent to either an individual or several people. Moreover, the section did not require that the communication have a clear tendency to disrupt ‘public order’. The Supreme Court held that there was no proximate relationship, therefore, between the section and ‘public order’. The Supreme Court held that a tendency to create public disorder “ought to be an essential ingredient of the offence which [Section 66A] creates” in order for it to be constitutionally valid.
2. Defamation: The Supreme Court acknowledged that injury to reputation is a basic ingredient of defamation. Section 66A clearly did not concern itself with injury to reputation; “something may be grossly offensive and may annoy or be inconvenient to somebody without it affecting his reputation.” The Supreme Court concluded that section 66A was not aimed at this subject matter.
3. Incitement to an offence: When considering this subject matter, the Supreme Court took into account the fact that the information disseminated according to 66A need not be information which incites anybody at all. Information may, as discussed above, simply amount to ‘advocacy’ or ‘discussion’ of a point of view rather than ‘incitement’. There was no proximate relationship between section 66A and incitement to commit an offence.
4. Decency or Morality: In this context the Supreme Court noted that information that is ‘grossly offensive’ or ‘annoying’ need not be ‘obscene’. The Supreme Court reasoned that the word ‘obscene’ was conspicuous by its absence from the provision.
5. The Supreme Court was not persuaded by the arguments of the Additional Solicitor General to read subject matters into the section, stating that had the legislature intended to include the relevant subject matters in the provision it would have expressly provided for them. To read down section 66A would simply amount to wholesale substitution of the provision.
6. Vagueness-When determining whether the provision was unconstitutional due to its vagueness, the Supreme Court stressed the fact that laws should be drafted so that a person of ordinary intelligence is given a reasonable opportunity to know what is prohibited. The Supreme Court also stressed that a provision should also provide clear guidance to authorities and courts so that it is not liable to suffer from arbitrary and discriminatory application.
7. The Supreme Court found section 66A to be completely open ended, undefined, and vague. It failed to narrowly and closely define the contours of the offence. The Supreme Court pointed out that all of the words in section 66A had a nebulous meaning. For example, something that is offensive to one person may not be offensive to another.
8. Supreme Court recognised that the same level of constitutional scrutiny would be given to laws which seek to regulate speech online as would be applied to laws regulating more traditional media.
9. In its judgment the Supreme Court also upheld the constitutionality of Section 69A of the IT Act, which provides a system for the blocking of information online by way of an order from a member of Central Government. The Supreme Court reasoned that appropriate safeguards were built into the legislative provision, and the circumstances under which it applied were narrowly tailored to three of the designated subjects in Article 19(2).
10. The Supreme Court also read down Section 79 of the IT Act on intermediary liability. The provision must now be read as providing for intermediary liability only where an intermediary has received actual knowledge from a court order or on being notified by Government that unlawful acts related to Article 19(2) are going to be committed, and that intermediary had failed to expeditiously remove or disable access to such information.

ARTICLE 19(1)(g)

Scope of this clause-

In TMA Pai, court said that education amounts to occupation which can be restricted under 19(6). Would any activity which is being carried for livelihood and profit come under 19(1)(g)? Is dacoity profession?

If you include everything in 19(1)(g) then you have to give very wide interpretation to restriction under 19(6). For example for dacoity complete prohibition might be required.

In countries like US, there is no specific right to trade but it comes under liberty. The govt. is allowed to use police power to restrict liberty in the interest of public health, safety, general welfare etc.

In India, courts have imported this doctrine in 19(1)(g). The rationale is what should be in the scope of 19(1)(g) and on that basis restrictions have to be read.

Doctrine of res extra commercium-things that cannot be owned. Eg. Sea, river etc. In India however it means that certain things are not the subject matter of commerce as protected under 19(1)g. They are inherently noxious things.

State of Bombay v RMD Chamerbaugwala 1957

Gambling is res extra commercium.

‘We find it difficult to accept the contention…19(1)(g). It is not our purpose….Art. 301 of our constitution.’

Krishna Kumar Narula v J&K 1967

Contention was if gambling is res extra commercium, then trade in liquor is also res extra commercium as it has also been mentioned in Art.47. But court said that activity can be moral or immoral, legal or illegal but you cannot say that just because something is immoral, it is not an activity.

Nashirwar v MP 1975

‘There are three principal reasons to hold that there is no FR of citizens to carry on trade or to do business in liquor. First…sale of liquor.’

Har Shankar v Dy Excise and Taxation Commr. AIR 1975 (Controlling opinion)

‘There is no fundamental right to do trade or business in intoxicants. The state…pauperism and crime.’ Uphold Nashirwar case.

As per me- Business for this article should mean all those activities which are for earning livelihood and for profit provided that they do not cause blatant harm to another or exploit them and the engagement in such activity should lead to general welfare and socio-economic progress of both parties of the nation.

Fatehchand Himmatlal v State of Maharashtra 1977

Maharashtra Debt relief Act was challenged by moneylenders as the act abolished all debts.

‘We have no hesitation in our hearts and out heads to hold that every systematic profit-profit-oriented activity however sinister, suppressive or socially diabolic cannot ipso-facto exalt itself into a trade.’ DPSP cast a high duty on state to strive to promote the welfare of people.

‘Incorporation of DPSP…argues itself.’

So money-lending is extra-commercium.

Hanif Quraishi v State of Bihar 1959

Facts–

In Bihar, the Bihar Preservation and Improvement of Animals Act, 1956 (Bihar Act II of 1956) was introduced which imposed a total ban on the slaughter of all categories of animals belonging to the species of bovine cattle.

Held–

The Constitution Bench in Quraishi-I upheld the constitutional validity, as reasonable and valid, of a total ban on the slaughter of: (i) cows of all ages, (ii) calves of cows and she-buffaloes, male or female, and (iii) she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle.
‘The discussion in the foregoing paragraphs clearly….progeny.’
DPSP are fundamental in governance of country but that does not mean that they will override FR.

‘The country is in short supply…..proposition.’

State is duty bound to enforce DPSP under Art.37.

State of Gujarat v. Mirzapur Moti Kureshi Kassab, (2005) 8 SCC 534

Facts–

This is an astonishing case relating to cow slaughter. The State of Bombay had enacted the Bombay Animal Preservation Act, 1948, prohibiting the slaughter of animals which were useful for milch, breeding or agricultural purposes. This Act was extended to the State of Gujarat by the Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961. This Act was amended in 1994 by the Bombay Animal Preservation (Gujarat Amendment) Act, 1994. This statute was challenged by the representative bodies of Kureshis. The Akhil Bharat Krishi Goseva Sangh, the Hinsa Virodhak Sangh, the Jeevan Jagriti Trust and the Gujarat Prantiya Arya Pratinidhi Sabha were impleaded as party respondents.
1. The High Court allowed the writ petition and struck down the impugned legislation as ultra-vires the Constitution holding that the statute imposed an unreasonable restriction on fundamental rights.

Issues–

The challenge to the constitutional validity of the legislation was founded on three grounds.
1. That the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is sanctioned by Islam.
2. Secondly, that such a ban offended the fundamental rights of the (butchers) under Art. 19(1)(g) and was not a reasonable and valid restriction on their right.
3. Thirdly, that a total ban was not in the interest of the general public.

Held–

Chief Justice S.R. Das speaking for the constitutional bench held that the total ban on the slaughter of cows and calves of cows and she-buffaloes was valid.
1. The constitutional bench further held that the total ban on the slaughter of she-buffaloes or breeding calves or working bullocks so long as they are capable of being used as milch or draught cattle was also valid. However, the constitutional bench held that a total ban on the slaughter of she-buffaloes, calves and bullocks after they cease to be incapable of yielding milk or breeding or working could not be supported as reasonable and in the interests of the general public and was invalid.
2. It appears that in this case, the first ground of challenge namely, that the sacrifice of a cow sanctioned by Islam was turned down by the court due to the meagre material placed before the court. It appears that no one specially competent to expound the religious tenets of Islam filed an affidavit making reference to any particular Surah of the Holy Quran which requires the sacrifice of a cow.
3. The Constitutional Bench, in this case, concluded that the cow progeny ceased to be useful as a draught cattle after a certain age.

ARTICLE 21-RIGHT TO LIFE

Article 21 No person shall be deprived of his life or personal liberty except according to procedure established by law.

Duty holder is all persons and not just citizens

Deprivation of life can only be by law.

Law as same meaning as in Article 19

Modeled on 5^th amendment of US Constitution. But in US its due process and is called procedural due process. US courts have steered it towards substantial due process.

For Example-A law says that if u speak ill of government, u shall be imprisoned without appeal.

Procedural Due Process-Whether u can imprison someone without appeal

Substantive Due Process-Whether you can imprison someone for speaking ill of the govt.

Lockner v US-

Impermissible deprivation of liberty.

AK Gopalan v State of Madras 1950

A communist leader was detained under prevention detention

‘If there is a legislation directly attempting to control a citizens…..detenue’s life.’

‘Personal liberty…complete Article.’

‘No extrinsic aid…justice.’

Article 19 to be looked for free citizens and 21 for detained.

AK Gopalan reading means that article 21 is a guarantee only against executive actions and not against legislative actions.

RC Cooper v Union India 1970

Bank Nationalisation case. (Deprivation of property)

‘Under…dimension.’ About 19(1)(f) and 31

ADM Jabalpur

Said RC Cooper is about 19(1)(f) and 31 so Gopal is still the law.

Maneka Gandhi v UOI 1978

‘The expression ‘personal liberty’ in Article 21…under Article 19.’

‘Article 14 strikes at arbitrariness in state action…satisfied.’

Krishna Iyer-To sum up, procedure in Article 21 means fair, not formal procedure. ‘Law is reasonable law, not any enacted piece.

So Procedure established by law becomes ‘due process’ both procedural and substantive.

Md Arif v Registrar SC 2014 case

Para 17-28 sums up the history of procedure establish law from magna carta.

Olga Tellis

Right to life includes right to livelihood.

Mithu v State of Punjab 1983

S.303 of IPC provided mandatory death penalty for someone who commits murder while serving life sentence.

Chairman Railway Board v Chandrima Das 2000

Railway employees had raped a Bangladeshi women on duty. Court invoked Article 21 to say that it includes not just citizens but ‘persons’

Death Penalty

Before 1955, crime of murder, death penalty was the norm and life imprisonment was exception. And a judge had to give reasons for giving life imprisonment.

An amendment in 1958 this norm was taken away and both punishment became equal

CrPC 1973-Life imprisonment became norm and death penalty an exception.

S.354(3) CrPC-special reasons to be given for death sentence

Multiple challenges to constitutionality of death penalty

Jagmohan Singh v State of UP 1972

Death penalty is by procedure established by law but they did say that death penalty is an exception.

1978-Menaka Gandhi-After this case, more challenges

Bachhan Singh 5J

Whether death penalty under 302 is unconstitutional

Is death penalty is violation of Article 21?

If no, under 354(3) CrPC, a judge is given unguided discretion to give death sentence and such is arbitrary.

‘There are numerous…too good for them.’

‘It is therefore..foreclosed.’

It is evident by various Articles of constitution that constitution makers wanted death penalty to continue.

There are abolitionists and retentionists but the burden of proof is on abolitionists.

Special reasons means exceptional reasons found on exceptionally grave reasons.

Where no alternative options is unquestionably foreclosed.

Many say that rarest of rare does not work.

Puttuswamy-locates privacy in Article 21 and that test shall be proportionality. Proportionality means legitimate purpose and reasonable nexus with ends and means.

Aadhar case-that modern dental will apply to Article 21 as well.

After Aadhar, proportionality is the standard for judging reasonableness.

SECULARISM

Principle of equality and non-discrimination

Principle of freedom of religion

US-considers itself to be secular. Everyone free to wear whatever they want.

France-Other secular polity but no religious symbol allowed in public.

Turkey-No signs and symbols of religion in any educational institution

US-Anti establishment. State shall not establish any religion not should it favour or disfavour any religion.

France-Laicety meaning that religion is private affair. When u come in public, keep your religion at home.

India-some people say its is tolerance. Tolerance implies presence of hierarchy.

Principled distance-Secular as well as personal laws.

Has it to treat all religions same?

Not necessarily-State can chose which religion to reform first (Narasu Appa Mali)

Minorities have special right under Article 30.

No strict wall of separation as in West.

IMP

S.25 is an individual right and S.26 is a community right.

S.25 is subject to public order, morality and health and to the other provisions of this Part. But S.26 is only subject to subject to public order, morality and health and not to the other provisions of this Part.

S.25(2)(a) implies there are some religious matters and some secular matter associated with a religion.

Performing a Puja is a religious matter and purchasing of things related to Puja is a secular aspect.

How does one draw the line between religious and secular acts associated with a religion.

S.26(b) provides that religious denominations have right to manage its own affairs in matters of religion; What is this religious matter?

S.25(2)(b) provides that state can initiate social welfare reform of Hindus.

The question is if S.25 is subject to S.26, then isn’t that mean that 25(2)(b) is subject to 16(b)?

WHAT DOES A PERSON MEAN IN S.25?

Can a deity Ayappa claim right to be worshipped?

The commissioner, Hindu Religious Endowments Madras v Sri Shirur Mutt 1954 7J (Most important case on S.25 and 26)

‘The word religion has not been defined….his will.’ ‘We do not think…adequate.’ ‘We have great doubt..and dress.’

Institutions as such cannot profess and propagate religion and only person can do. Person only means individual persons.

WHAT DO YOU MEAN RELIGION UNDER S.25?

Where groups claim them to be distinct religion, this becomes important.

In Shirur Mutt case, court defend religion using US definition of religion Davis v Benson but differed on some points.

SP Mittal v UOI 1983

Case relating to Aurbindo Society. Followers of Aurbindo set up a society for propagating his things. There were allegations of mismanagement and hence government took over the society by law. Followers challenged this acquisition by claiming that Aurbindo founded a religion and govt. action violated their freedom of religion. Majority held that it was not religion but only a philosophy. The reason given was that its teaching invited people from all religion to become part of the society.

Chinappa J in his dissent said that ‘Religion…their names’

AS Narayana Deekshitulu v State of AP (1996)

‘A religion undoubtedly…constitution.’

WHAT IS RELIGIOUS DENOMINATION UNDER S.26?

Shirur Mutt case 1954

‘The word denomination has been defined…spiritual organisation.’

SP Mittal v UOI 1983

‘The word denomination…name’

This definition became contentious in Sabrimala case.

There was Kerala Act which provided that no class of Hindus shall be excluded from entering a temple of public character. But it provided an exception of freedom to religious denomination to manage their own affairs. By a rule it excluded women of some age from entering the temple.

In Sabrimala case, devotees of Sabrimala claimed to be a religious denomination and thus having right under Article 26 of constitution as well as the State Act to manage their own affairs.

Indian Young Lawyers Association v State of Kerala 2018

Dipak Misra and Khanwilkar J-‘They said that conditionalities of denomination as provided in SP Mittal case is not fulfilled.

‘Coming to the first…that account.’

Nariman J– ‘There is no distinctive…Hindus of all kinds.’

Difference between religious and non-religious activity?

Court have said that certain religious practices ‘Essential Religious Practices’ which are covered by S.25 and 26 and not anything else.

Constituent Assembly had same dilemma that if religious practice is meant very broadly then it will cover almost everything.

ESSENTIAL RELIGIOUS PRACTICES

Shirur Mutt said that both religious belief and practice are protected under S.25.

So the question is what practices are protected under S.25?

Essential Religious Practices.

Ambedkar was of the same view.

Shirur Mutt case

‘The learned attorney general…state regulation.’

‘The contention…article 26(b).’

‘What article 25(2)(a) contemplates…practices.’

Ratilal Panachand Gandhi v State of Bombay 1954

‘Religious practices or performance of acts….trust estate.’

‘We may refer in this connection…Jamshed Ji v Soonabai.’

‘A secular judge…constitution.’

Bijoy Emmanuel

‘We do not endorse…contained therein.’

There are other line of cases which insists on essentiality and centrality of the practice and not the just the character.

Dargah Committee Ajmer v Hussian Ali 1961

‘Whilst we are dealing…no other.’

Hanif Quraishi v State of Bihar

Court rejects that cow slaughter is essential to Islam.

WB v Ashutosh Lahiri 1995

Cow slaughter was prohibited but certain exceptions were made on occasion of Bakrid.

This was challenged on ground of unreasonable classification. Court said that slaughter of cows on Bakrid is not essential practice.

Anand Margi case 1984

Anand Margis are the followers of Anand Murti. In 1966 he introduces the requirement of Tandav dance for his followers. His followers want to takes this dance procession in streets of Calcutta. DM did not permit that. They challenged the order. Court said that Tandav dance was not there from the beginning of the Anand Margis so its not an essential practice. So Anand Murti issues essential decree in favour of tandav dance. Again this was rejected.

Commissioner of Police v Acharya Jagdishwaranand Avdhoot 2004

‘Essential part of a religion means the core beliefs upon which a religion…..or practices.

Prescribe a but for test to determine the essential practice. But for this practice if the fundamental character of a religion will change, then its an essential part.

Ismail Farouqi v UOI 1995

‘It may be noticed…religion.’

‘While offer of prayer…reverentially.’

‘A mosque is not essential part of…India.’

‘Dangerous connotation for Abrahamic religion in India.’

Mohd Siddique v Mahant Suresh Das

Court said that Ismail Farooqi has no bearing on title suit of the Ayodhya dispute.

Shayara Banu v UOI 2017

Minority opinion said that personal laws are protected under Article 25. Majority said that even if covered, subject to essential religious practice.

The Islamic school which supports triple talaq is Hanafi law and it only tolerates it. Triple talak is something which Islamic law frowns upon. So it cannot be an essential religious practice of Islam. It’s not at the centrality of Islam.

Amna Bashir v CBSE 2016

CBSE was organising AIPMT. Lots of cheating reported so they ordered a dress code. This was challenged. Courts look at the degrees of obedience in Islam namely mandatory, encouraged indifference, frowns upon, haram etc and said that Burkha is not essential in Islam.

Mohammad Zubair v UOI 2016

An airman was stopped from keeping beard under airforce regulation. Under regulations, a person was not allowed to have beard unless otherwise required by their religion. Court looks at whether Islam prohibits shaving beard courts said no.

Two line of cases-

Shirur Mutt cases-Belief of community and character of practice shall determine essential religious practice of a religion. Less power on government to restrict practices.

Anand Margi line of cases-Central tenants of religion shall determine essential religious practice of a religion. Narrow scope of protection of religious freedom.

Implication of Essential Religious Practice

Gives court the power to determine what is essential and non-essential. Gives power to judges to strike down or uphold a feature of religions which even religious leaders do not have.

PROPAGATION OF RELIGION

Right to propagation does not mean right to convert to a religion.

Rev. Stainislaus v MP 1977

Two laws were challenged that prohibited conversion on some grounds.

‘We have no doubt that….country alike.’

Conversion also hit by public order.

Sri Venkataramana Devaru v State of Mysore 1958

‘The fact…Article 25(2)(b).’

‘We have held that…respects unaffected.’

Harmonious construction of S.25 and S.26 ie individual and denominational right.

Right of religious denomination is subject to Article 25 and vice vera.

Shastri Yagnapurushad v Moldas 1967

Swamy Narayan Sect called Satsangis were contending that they are not Hindus. Court gives definition of Hindu Religion.

Sardar Saifuddin Sahib v State of Bombay 1962

‘Let us consider first whether…constitution.’

A govt. law prohibited ex-communication. Dawoodi Bohra’s challenged that.

Social reform cannot change the essential religious character of a religion.

Sabrimala case (Indian Young Lawyers Association) 2018

Is there an ERP that can exclude women?

Court said that Article 25 allows all person to practice and profess their religion so no one can be excluded. Constitutional Morality.

One the question whether allowing women violate the rights of male devotees?

Court said that no as it was only 60-70 years earlier that women of this group were excluded.

Indu Malhotra said that you cannot test something on rationality which is based on rationality.

Constitutional Law 1 Notes: BA LLB Hons

Table of Contents

CONSTITUTIONAL LAW NOTES: INTRODUCTION

What is a Constitution?

What is constitutional law?

What is constitutionalism?

What makes constitution different from other laws?

Whether constitutions have to be necessarily written?

AUSTIN ON THE CONSTITUENT ASSEMBLY

SHEFALI JHA-LEGALITY OF THE CONSTITUENT ASSEMBLY

Was CA a collection of Hindu Upper Castes?

ANDREI MARMOR: QUESTIONING VALIDITY OF CONSTITUTION

MAIN FEATURES OF A MORALLY SIGNIFICANT CONSTITUTIONS

MAIN RATIONALE OF A WRITTEN CONSTITUTION

ARGUMENTS IN JUSTIFICATION OF WRITTEN CONSTITUTION

CONCLUSION

ADITYA NIGAM: POLITICS IN THE INDIAN CONSTITUTION

ADITYA NIGAM ARGUMENTS

JEREMY WALDRON: AGAINST JUDICIAL REVIEW

THE CORE OF THE CASE AGAINST JUDICIAL REVIEW

Assumption I-Democratic Society

Assumption II-Judicial Institutions

Assumption III-A Commitment to Rights

Assumption IV-Disagreement about Rights

RONALD DWORKIN: MAJORITARIAN PREMISE

THE MORAL READING AND THE MAJORITARIAN PREMISE

PRATAP BHANU MEHTA: SUPREME COURT LEGITIMACY

THE INDIAN SUPREME COURT AND ART OF DEMOCRATIC POSITIONING

CHINTAN CHANDRACHUD: CONSTITUTIONAL INTERPRETATION

PHASE I-TEXTUALISM

PHASE II-STRUCTURE-DOMINATED ECLECTICISM

PHASE III-PANCHAYATI ECLECTICISM

CONCLUSION

CONSTITUTIONAL INTERPRETATION CASE LAWS

ARTICLE 13-LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS

WHAT IS ‘LAW’ AND ‘LAW IN FORCE’ IN ARTICLE 13(3)?

AMENDMENTS AS LAWS WITHIN MEANING OF ARTICLE 13(2)

ARTICLE 12-WHAT IS STATE?

HORIZONTAL & VERTICAL APPLICATION OF FUNDAMENTAL RIGHTS

ARTICLE 14-EQUALITY BEFORE LAW

THE TWO DOCTRINES

CHARANJIT LAL CHOWDHURY v THE UNION OF INDIA 1950

THE STATE OF WEST BENGAL v ANWAR ALI SARKAR 1952 7J

KATHI RANING RAWAT V STATE OF SAURASHTRA 1952 7J

CRITICISM OF REASONABLE CLASSIFICATION

DIFFERENTIAL IMPACT TEST

ARTICLE 15-PROHIBITION ON DISCRIMINATION

ARTICLE 16-EQUALITY OF OPPORTUNITY

ARTICLE 19-RIGHT TO FREEDOM

WHAT ARE REASONABLE RESTRICTIONS?

WHAT IS THE PROPORTIONALITY TEST?

ARTICLE 21-RIGHT TO LIFE

SECULARISM

WHAT DOES A PERSON MEAN IN S.25?

WHAT DO YOU MEAN RELIGION UNDER S.25?

WHAT IS RELIGIOUS DENOMINATION UNDER S.26?

ESSENTIAL RELIGIOUS PRACTICES

PROPAGATION OF RELIGION

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