EDITION IX March 2020
9 ICLRQ (1) 2020
ISSN: 2456-8325
Sameer Avasarala
Founding Editor
Anubhuti Maithani
Publishing Editor
Savyasachi Rawat
Editor-in-Chief
Shreetama Ghosh
Deputy Editor-in-Chief
Indian Constitutional Law Review
Edition IX
March 2020
Cite as: 9 ICLRQ (1) 2020
ISSN No. 2456-8325
Published By
The Publishing Unit
TABLE OF CONTENTS
EDITORIAL BOARD ......................................................................................... 1
HONORARY ADVISORS & PATRONS ............................................................. 2
EDITORIAL NOTE ............................................................................................ 4
ARTICLES
PROSPECTIVE OVERRULING AND ITS APPLICATION IN INDIA: A
CRITIQUE by Saarthak Jain ............................................................................ 6
THE NEXUS BETWEEN AUTONOMY AND RELIGIOUS IDENTITY OF
PARSI WOMEN by Priya Agrawal ................................................................. 22
THE CONSTITUTIONALITY OF A BEEF BAN by Himanshu Mishra ........ 39
COURT’S JURISDICTION TO ENQUIRE INTO PROCEEDINGS OF THE
PARLIAMENT: A COMPARATIVE ANALYSIS by Akshita Mittal ............... 56
EVOLUTION OF THE PRESIDENT’S DISCRETIONARY POWERS AND
HIS ROLE OF A NOMINAL HEAD by Varisha Sharma ............................... 73
CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE
HUNDRED AND THIRD AMENDMENT) ACT, 2019 by Abhishek Bhatt &
Tarun Sharma ................................................................................................. 84
VIABILITY OF RESERVATION FOR ECONOMICALLY WEAKER
CLASSES by Priyanka Singh ........................................................................ 104
ANTI-TRAFFICKING BILL: A SIREN’S SONG by Aarvi Singh & Swantika
Kumar Rajvanshi ........................................................................................... 121
THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION: A
COMPARATIVE ANALYSIS OF THE INDIAN LAWS AND THE U.S. FIRST
AMENDMENT by Aditi Singhal ................................................................... 137
SUPREME COURT’S JURISPRUDENCE ON THE WEDNESBURY
PRINCIPLE by Krithika Srinivasan & Aarti Krishnan ............................... 158
A NOTE OF THANKS ................................................................................... 174
INDIAN CONSTITUTIONAL LAW REVIEW
EDITION IX Page | 1
EDITORIAL BOARD
FOUNDING TEAM
SHASHANK KANOONGO
CO-FOUNDING EDITOR SAMEER AVASARALA
FOUNDING EDITOR SAMIYA ZEHRA
CO-FOUNDING EDITOR
CORE TEAM
ANUBHUTI MAITHANI HIMANI SINGH
PUBLISHING EDITOR DEPUTY PUBLISHING EDITOR
SAVYASACHI RAWAT
EDITOR-IN-CHIEF
SHREETAMA GHOSH
DEPUTY EDITOR-IN-CHIEF
SENIOR ASSOCIATE EDITORS
ARPITA NANDI
PROMITA SINHA
ANSHUL DALMIA
SENIOR RESEARCH EDITORS
DEVANSH SARASWAT
ANNAPURNA SINHARAY
ASSOCIATE EDITORS
ANISHA SINGH
NAINA NERLI
TANYA ARORA
MOHAMMAD ANAS KHAN
EDITORS
APARAJITA JHA
SHIPRA SAYAL
ABHISHREE MANIKANTAN
INDIAN CONSTITUTIONAL LAW REVIEW
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HONORARY ADVISORS & PATRONS
• Remembering Hon’ble Justice (Dr) A. S. Anand, 29th Chief Justice
of India and Former Chairman, NHRC
• Hon’ble Justice Arjan Kumar Sikri, Former Judge, Supreme Court
of India
• Hon’ble Justice K. S. Panicker Radhakrishnan, Former Judge,
Supreme Court of India
• Hon’ble Justice Prakash Prabhakar Naolekar, Former Judge,
Supreme Court of India, Former Lokayukta, Madhya Pradesh
• Hon’ble Justice Peter Mohan Peiris, 43rd Chief Justice of the
Republic of Sri Lanka
• Hon’ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal
Democratic Republic of Nepal
• Mr. Arvind Datar, Senior Advocate
• Ms. Geeta Luthra, Senior Advocate
• Dr. Adish C Aggarwala, Senior Advocate and President,
International Council of Jurists
• Adv. Maneka Guruswamy, Senior Advocate
• Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi
• Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of
Harayana
• Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad
• Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru
• Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School,
Pune
• Prof. (Dr.) A. Lakshminath, Vice-Chancellor, CNLU Patna
• Prof. (Dr.) Sukh Pal Singh, Vice-Chancellor, HNLU Raipur
• Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala
• Prof. (Dr.) Rose Varghese, Vice-Chancellor, NUALS Kochi
• Karuna Nundy, Advocate
• Prof. S. Sivakumar, Member, Law Commission of India
• Prof. Michael Keating, Director, Center for Constitutional Change,
University of Aberdeen
INDIAN CONSTITUTIONAL LAW REVIEW
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• Prof. Sujit Choudhry, Professor, Berkeley Law
• Prof. Richard Albert, Professor, University of Texas
• Prof. Andrew James Harding, Professor of Law, National
University of Singapore
• Prof. Madabhushi Sridharacharyulu, Former Central Information
Commissioner
ESTEEMED MEMBERS
• Dr. Satish Gowda, Senior Professor of Law, P.G. Department of
Law, Bangalore University, Bengaluru, Honorary Member,
Advisory Council
• Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School,
Pune
• Mr. Mohd Imran, Asst Prof., School of Law & Constitutional
Studies, Shobit University, Meerut
• Manjeet Kumar Sahu, Advocate, High Court of Jharkhand
• Ms. Navtika Singh, Assistant Professor, ICFAI University,
Dehradun
• S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal
Advocates, Bengaluru, Honorary Member, Advisory Council
• Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur
• Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law,
Galgotia University, Founder, Knowledge Steez
INDIAN CONSTITUTIONAL LAW REVIEW
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EDITORIAL NOTE
It is with immense pleasure that the Editorial Board releases the 9th
(ninth) edition of Indian Constitutional Law Review. In the midst of
incredibly wide-ranging changes in the field of constitutional law, this
law review itself has undergone some massive changes – not least in
terms of its design.
In this edition, the featured papers discuss issues of incredible
importance and all of them offer a fresh perspective on constitutional
quagmires. This edition consists of various contemporary as well as
conventional constitutional topics. Ranging from an exposition on
prospective overruling in India, to analyses of the constitutional validity
of some of the biggest changes brought about in the current
dispensation, this edition is packed with incisive commentary and deep
legal research.
Several of the papers also discuss the executive and the judiciary, and
their overlap – this discussion is particularly relevant in the age of an
‘executive’ judiciary and in view of the continuously blurring lines
between the government and the judges. As we delve into figureheads,
and the erosion of active members of the government, it is fitting that
one of the papers provides an analysis of the unique role of the President
of India.
With respect to discourse regarding gender justice, the featured authors
have undertaken a thorough study of the Anti-Trafficking Bill and
provided an immensely analytical breakdown of the nexus between
personal freedom and religious constraints with respect to Parsi women.
We hope this edition is able to pique the interest of those already
interested in constitutional law, as well as draw the attention of those
who are yet to experience this fascinating field; in raising such interest,
we wish that this edition allows our readers to learn something new,
enables discourse, and brings about awareness and academic
interaction regarding these topics.
In the upcoming editions, we hope to engage with the Citizenship
Amendment Act, the abrogation of Article 370, the use of the Unlawful
Activities Prevention Act, among other topics of contemporary import.
INDIAN CONSTITUTIONAL LAW REVIEW
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We look forward to your feedback and submissions.
Happy reading!
Savyasachi Rawat Shreetama Ghosh
Editor-in-Chief Deputy Editor-in-Chief
INDIAN CONSTITUTIONAL LAW REVIEW
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PROSPECTIVE OVERRULING AND ITS APPLICATION IN
INDIA: A CRITIQUE
Saarthak Jain†
ABSTRACT
Traditionally, it has been held that statutory
provisions apply prospectively whereas judicial
pronouncements, which overrule the earlier status
quo, have retrospective effect. However, in the
interest of pragmatism, it was felt that the
retrospective operation of certain rulings would
unduly disrupt the existing structures and
transactions. Under this light, the doctrine of
prospective overruling originated in common law.
Regardless of the judicial theory, it is well-
recognized that prospective overruling can play a
crucial role in making change less disruptive and
burdensome for the courts, the administrators, and
the society at large. However, since this doctrine
has been borrowed from the United States of
America, the Indian courts have failed to analyze
and apply it in a consistent manner.
In this background, this paper attempts to study
the origin and application of the doctrine of
prospective overruling. Through an analysis of the
Indian jurisprudence, it is found that the doctrine
has been erroneously applied by the Indian
judiciary. This paper delves into some of these
issues and attempts to find solutions for the same.
† 3rd year law student at National Law School of India University, Bangalore. The
author may be reached at [email protected].
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I. INTRODUCTION
Common law has the potential to adapt itself and meet the challenges
of the growing times and the changing needs of society. One sterling
example of its creativity is the development of the Doctrine of
Prospective Overruling. This doctrine envisages that a well-established
precedent may be overruled with effect from a future date and not
retrospectively.
Traditionally, a judicial declaration that a law is unconstitutional is
deemed effective prospectively as well as retrospectively. An
unconstitutional law is regarded to have been void from its very
inception. This is in accordance with the Blackstonian view of law that
the duty of the court is “not to pronounce a new rule but to maintain and
expound the old one”.1 The theory is that the law has not changed, only
its true nature has been disclosed. Accordingly, the law as now found by
the Court must apply to the past as well as the future transactions.
However, when a judgment which has held the field for a long period of
time is overruled, it may result in administrative chaos if the new rule
is applied to all the cases which have been decided on the basis of that
old rule. A.R. Blackshield, an eminent legal jurist, has explained the
circumstances wherein the court would be justified in resorting to
prospective rather than retrospective overruling:
In general, it may be said that to warrant prospectivity,
there must be an awareness that the results of normal
retrospectivity would be, not merely inconvenient, but
gravely unjust or would involve an extremely burdensome
sorting out process for courts or administrators. Injustice to
a single litigant will normally not suffice. What is required
is that retrospectivity would disrupt the private lives of
many citizens or would throw a substantial network of
business arrangements or property transactions into doubt
or confusion; or would destroy the validity of elaborate
1 M.P. Jain, INDIAN CONSTITUTIONAL LAW 1727 (6th ed., LexisNexis 2012).
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administrative arrangements which had already been
worked out, and which as a practical matter could not
possibly be reopened.2
In this paper, an attempt has been made to trace the origin of this
doctrine in common law. This is followed by a detailed account of its
adoption and application in India. Since this doctrine has been borrowed
from the United States of America, the Indian jurisprudence has failed
to comprehensively analyse the issues and limitations related to
prospective overruling. Such an analysis would enable one to
understand whether the propositions laid down by the Supreme Court,
as a matter of caution, are really necessary.
II. THE ORIGIN OF THE DOCTRINE
Prospective overruling was, for the first time, laid down by the United
States Supreme Court in Great Northern Railway Company v. Sunburst
Oil & Refining Co.3 Sunburst, a shipper, had earlier sued Great
Northern Railway Company for recovering payments claimed to be
overcharges for freight. The Railroad Commission of Montana, upon a
complaint by the shipper, held that the rates so approved were excessive
and unreasonable. The case was decided in the shipper’s favour. Upon
appeal to the Montana High Court, the court overruled the decision, but
limited the change to the cases arising in the future. Great Northern
Railways was offended by the refusal of the court to grant relief to them,
and appealed to the US Supreme Court. They argued that the decision
of the High Court was flawed as it deprived the company of its property
by virtue of an interpretation of the statute law now acknowledged to be
wrong.
2 A.R. Blackshield, “Fundamental Rights” and the Economic Viability of the Indian
Nation: Part Three: Prospective Overruling, 10(2) JOURNAL OF THE INDIAN LAW
INSTITUTE 227 (1968). 3 Great Northern Railway Company v. Sunburst Oil & Refining Co., 287 US 358
(1932).
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The Supreme Court rejected this argument in a unanimous decision
written by Justice Cardozo. He observed:
A state in defining the limits of adherence to precedent may
make a choice for itself between the principle of forward
operation and that of relation backward. It may say that
decisions of its highest court, though later overruled, are
law none the less for intermediate transactions. Indeed,
there are cases intimating, too broadly, that it must give
them that effect; but never has doubt been expressed that it
may so treat them if it pleases, whenever injustice or
hardship will thereby be averted.
It is submitted that the Sunburst Doctrine, as it came to be known in
the US, is not the correct approach for the application of prospective
overruling. The litigant of the case, who has spent considerable time and
efforts, is denied relief by the court despite the court’s acknowledgment
of his plea. As a result, prospective plaintiffs have little incentive to
bring an action.4 Except for the relatively rare instances of test cases or
action brought by public authorities, plaintiffs bring actions in their own
interests and not for the sake of clarifications of legal principles.
The Sunburst approach was, however, subsequently reaffirmed by the
US Supreme Court in Chicot County Drainage District v. Baxter State
Bank.5 In fact, until 1965, the US Supreme Court uniformly applied
prospective overruling by not granting relief to the parties in the case
before the Court.6 However, in Linkletter v. Walker,7 the US Supreme
Court, for the first time, broke away from such declarations by granting
relief to the aggrieved party as well. The Court laid down that in
determining whether to give its decision a prospective or retrospective
4 W. FRIEDMAN, LEGAL THEORY 510 (5th ed., Columbia University Press 1967); LORD
LLOYD HAMPSTEAD & M.D.A. FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE
858 (4th ed., Sweet and Maxwell 1979). 5 Chicot County Drainage District v. Baxter State Bank, 308 US 371 (1940). 6 T.E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only:
’Prospective Overruling’ or Sunbursting, 51(3) MARQUETTE LAW REVIEW 256 (1968). 7 Linkletter v. Walker, 381 US 618 (1965).
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operation, the courts must weigh the merits and demerits of each case
by looking back at the history of the rule in question, its purpose and
effect, and whether such retrospective operation will accelerate or retard
its operation. Hence, the US Supreme Court modified its original
doctrine of prospective overruling and transformed it into selective
prospectivity. In other words, relief could be granted by a court to the
aggrieved party as it deems fit. This position was reaffirmed in several
subsequent cases.8 Over the last century, the doctrine of prospective
overruling has been applied in civil and criminal matters in the USA,
and has not been limited to strictly constitutional matters.
However, the position of law was starkly different in the United
Kingdom. Until recently, the English view was largely based on the
Blackstonian theory that the court was not to pronounce a new rule, but
to maintain and expound the old one. As explained by Lord Goff of
Chievely in Kleinwort Benson Ltd. v. Lincoln City Council:9
What the judge states to be the law will, generally speaking,
be applicable not only to the case before him but, as part of
common law, to other comparable cases which come before
the Courts, whenever the events which are the subject of
those cases in fact occurred…When the judges state what
the law is, their decisions do, in the sense I have described,
have a retrospective effect. That is, I believe, inevitable.
However, it must be admitted that English judges have flirted with the
idea of prospective overruling after noticing the bizarre consequences
that may arise out of retrospective effect of judgments. In the House of
Lords judgment of Miliangos v. George Frank,10 Lord Diplock suggested
that the doctrine of prospective overruling should be considered an
option under English jurisprudence.
8 A. Chugh, Doctrine of Prospective Overruling: Judicial Innovations in Declaring the
Law, 29(3) INDIAN BAR REVIEW 292 (2002). 9 Kleinwort Benson Ltd. v. Lincoln City Council, [1998] UKHL 38. 10 Miliangos v. George Frank, [1976] AC 443.
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It was finally in 2002 that the House of Lords accepted the application
of this doctrine. In the case of Royal Bank of Scotland plc v. Etridge,11
the court had the occasion to consider the prospective overruling of an
earlier case.12 In this case, the House laid down the steps to be taken by
a bank with regard to transactions in the future without disturbing the
earlier practice that was being followed. In 2005, the House of Lords had
another opportunity to consider the application of this doctrine in the
case of National Westminister Bank Plc v. Spectrum Plus Ltd.13 It was
held by the court that if a decision has gravely unfair and disruptive
consequences for past transactions and events, then applying the
doctrine of prospective overruling would not be considered as judicial
overstepping. Moreover, the doctrine has not been confined to
constitutional cases alone.
III. THE INDIAN SCENARIO: GOLAKNATH AND THEREAFTER
The Supreme Court of India’s power to prospectively overrule its earlier
decisions was firmly established by the judgment rendered in L.C.
Golaknath v. State of Punjab.14 In this landmark judgment, the
Supreme Court held that the fundamental rights enshrined in Part III
of the Constitution are not amendable by the Parliament, or more
specifically that a constitutional amendment is a “law” within the
meaning of Article 13, and is, therefore, invalid if it takes away or
abridges any of the fundamental rights. Five out of the eleven judges
took recourse to the doctrine of prospective overruling. While holding
that the Parliament could not amend the fundamental rights, they
declared that this norm would operate only in the future, and not
retrospectively. This meant that none of the amendments made to the
fundamental rights up to the date of the Golaknath decision would be
invalidated. Thus, while all amendments made to the fundamental
11 Royal Bank of Scotland Plc v. Etridge, [2001] UKHL 44. 12 Barclays Bank Plc v. O’ Brien, [1993] UKHL 6. 13 National Westminister Bank Plc v. Spectrum Plus Ltd., [2005] UKHL 41. 14 L.C. Golaknath v. State of Punjab, 1967 SCR (2) 762.
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rights till Golaknath were to remain effective, thereafter Parliament
was not to be competent to modify fundamental rights.15
Chief Justice K. Subba Rao undoubtedly took a bold and imaginative
step, challenging the very roots of traditional jurisprudence in India.
Between the commencement of the Constitution on January 26, 1950
and the date of judgment in Golaknath, a number of constitutional
amendments amending the fundamental rights had been enacted and
were treated as valid by the Supreme Court in Shankari Prasad16 and
Sajjan Singh.17 Based on these amendments, several state legislatures
had enacted agrarian reforms revolutionizing the entire agrarian social
structure of India. If the Golaknath ruling were given a retrospective
effect, all this wholesome legislation would fall to the ground. To meet
this extraordinary situation that may be caused by the decision, the
Court felt that it must evolve some doctrine which had “roots in reason
and precedents so that the past may be preserved and the future
protected”.18 Talking about prospective overruling, Justice Subba Rao
observed:
It is a modern doctrine suitable for a fast- moving society.
It does not do away with the doctrine of stare decisis, but
confines it to past transactions. It is really a pragmatic
solution reconciling the two conflicting doctrines, viz that
the court finds law and that it does make law also. It finds
law but restricts its operation to the future. It enables the
Court to bring about a smooth transition by correcting its
errors without disturbing the impact of those errors on the
past transactions.19
Prospective overruling in the Golaknath case was applied very
differently from the way it has been made use of in other common law
15 H.M. Seervai, CONSTITUTIONAL LAW OF INDIA 8.18 (4th ed., NM Tripathi Pvt. Ltd
1991). 16 Shankari Prasad v. Union of India, AIR 1951 SC 455. 17 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. 18 Per Subba Rao J., L.C. Golaknath v. State of Punjab, 1967 SCR (2) 762. 19 Id.
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jurisdictions. In most countries, prospective overruling has been applied
to hold the law in question invalid from the date of the decision and not
earlier. However, in Golaknath, the impugned constitutional
amendments were to remain valid forever, even after the Supreme
Court’s decision. The principle of non-amendability of the fundamental
rights was to apply only in the future.20 If the doctrine was applied in
the same way as it is done in other jurisdictions, the amendments ought
to have been held invalid from the date of the judgment. Therefore, the
Supreme Court effectively diluted the doctrine of prospective overruling
in this case.
As the Supreme Court was invoking this doctrine for the first time, it
further laid down three propositions by way of abundant caution,
namely:
a. The doctrine of prospective overruling would be used only in matters
arising under the Constitution;
b. This doctrine can be invoked only by the Supreme Court since it has
the constitutional jurisdiction to declare law which is binding on all
other Courts in India; and
c. The precise version of retrospectivity to be imposed is to be a matter
of the Court’s discretion, “to be moulded in accordance with the justice
of the cause or matter before it”.
After the Golaknath case, the Supreme Court, on numerous occasions,
applied prospective overruling as an expedient remedy. In Waman Rao
v. Union of India,21 a question was raised on the validity of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and
the device of prospective overruling was used by the Court. Similarly, in
Atam Prakash v. State of Haryana,22 the question was over the validity
of the Punjab Pre-emption Act, 1913. The Court, while holding that
relevant provisions of the Act were ultra vires the Constitution, ordered
20 Jain, supra note 1, at 1729. 21 Waman Rao v. Union of India, AIR 1981 SC 271. 22 Atam Prakash v. State of Haryana, AIR 1986 SC 859.
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that where the decrees had become final, they would remain binding on
the parties and the declaration granted by the Court with regard to the
invalidity of the provisions of the Act would be of no avail to the parties
to such decrees.
In another important case of L. Chandra Kumar v. Union of India,23 the
Supreme Court held that Article 32 and Article 226 of the Constitution
of India are part of the basic structure of the Constitution, and that
clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent
they exclude the jurisdiction of the High Court and the Supreme Court,
are unconstitutional. The judgement was however prospective in nature.
A very significant use of prospective overruling was made in the
landmark Mandal Commission case.24 In this case, the ratio of The
General Manager, Southern Railway v. Rangachari25 was overturned.
Under the Rangachari ruling, a number of people belonging to the
Scheduled Castes and Scheduled Tribes had got reservations in
promotions. In order to bring about a smooth transition in the
promotions of SCs and STs, the Supreme Court held that the Mandal
Commission ruling would come into effect five years after the date of
judgment. This was not only extending the principle of prospective
overruling but even further elongating the same for five more years. In
Ashok Kumar Gupta v. State of Uttar Pradesh,26 the Supreme Court
upheld the constitutional validity of the Mandal Commission ruling.
The Court observed:
The prospective overruling of Rangachari ratio in Mandal
case is constitutional and fulfils the competing equality
between sections of the society.
23 L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186. 24 Indra Sawhney v. Union of India, AIR 1993 SC 477. 25 The General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36. 26 Ashok Kumar Gupta v. State of UP, 1997 (5) SCC 201.
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In another ruling, Somaiya Organics v. State of U.P.,27 Justice B.N.
Kirpal held that even a law enacted without legislative competence may
be prospectively overruled and observed:
Nevertheless a law enacted without legislative competence
remains on the statute-book till a court of competent
jurisdiction adjudicates thereon and declares it to be void.
When the Court declares it to be void it is only then that it
can be said that it is non est for all purposes…It is not
possible to accept that such an order of prospective
overruling is contrary to law. An invalid law has not been
held to be valid. All that has happened is that the
declaration of invalidity of the legislation was directed to
take effect from a future date.
A recent instance where the Supreme Court resorted to the application
of this doctrine can be found in Ramesh Kumar Soni v. State of Madhya
Pradesh.28 This case dealt with the Code of Criminal Procedure (Madhya
Pradesh Amendment) Act of 2007, which made certain offences triable
only by the Court of Sessions. A charge sheet was filed before the
Judicial Magistrate, First Class, after the commencement of the
amendment and consequently, the case was committed to the Court of
Sessions. The question before the Supreme Court was whether the view
taken by the Full Bench of the High Court, holding the amended
provision to be inapplicable to pending cases, is correct or not. The SC
held the High Court’s view to be incorrect in principle, but held that the
decision rendered by the High Court would stand overruled only
prospectively. Justifying their reasoning, T.S. Thakur, J. stated:
We say so because the trial of the cases that were sent back
from the Sessions Court to the Court of the Magistrate, First
Class under the orders of the Full Bench may have
concluded or may be at an advanced stage. Any change of
forum at this stage in such cases would cause unnecessary
27 Somaiya Organics v. State of UP, (2001) 5 SCC 519. 28 Ramesh Kumar Soni v. State of Madhya Pradesh, AIR 2013 SC 1896.
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and avoidable hardship to the accused in those cases if they
were to be committed to the Sessions for trial in light of the
amendment and the view expressed by us.29
Hence, the doctrine of prospective overruling today seems to have
crystallised and has cemented a place for itself in modern Indian
jurisprudence. However, there are certain aspects of this doctrine which
still need to be clarified by the courts of law. This ambiguity can be
traced back to the Golaknath ruling. There is no dispute over the fact
that the Supreme Court rightly invoked the doctrine of prospective
overruling in the Golaknath case. If it had not done so, it would have
resulted in a constitutional crisis and administrative chaos throughout
the country. However, whether the three propositions restricting the
scope of this doctrine are necessary is a debatable point, which has been
addressed in the next section.
IV. THE NEED FOR REFORM
As mentioned in the previous section, Justice K. Subba Rao laid down
three essential propositions for the application of prospective overruling.
It is submitted that the first two propositions, that the doctrine may be
employed only by the Supreme Court and only where there is a
constitutional matter at issue, are unnecessary and excessively restrict
the scope of the application of this doctrine.
The first proposition limiting the subject matter to constitutional issues
is unjustifiable in the present context. To impose such a subject-wise
limitation seems almost self-defeating, and would hinder a broader
understanding of the functioning of judicial relief when faced with a
decision of wide impact.30 The rationale behind invoking this device is
to render justice, and justice can never be solely limited to constitutional
matters. Article 142 of the Constitution enables the Supreme Court to
29 Per T.S. Thakur J., Ramesh Kumar Soni v. State of Madhya Pradesh, AIR 2013 SC
1896. 30 W.S. Hooker, Prospective Overruling in India: Golaknath and After, 9(4) JOURNAL
OF THE INDIAN LAW INSTITUTE 628 (1967).
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do complete justice in all matters and not merely constitutional matters.
There are several areas, apart from constitutional law, wherein a new
judicial interpretation could have a detrimental impact on past events
or transactions. This could be in cases involving transfer of property,
taxation and land acquisition. This proposition is an obstacle to judicial
relief, and should be removed in order to facilitate justice. It is also quite
out of context when one considers the progressive role played by the
Supreme Court in the Mandal Commission case. The observations made
by Justice K. Ramaswamy in the Ashok Kumar Gupta case are
pertinent:
[P]rospective overruling is a method evolved by the courts to
adjust competing rights of parties so as to save transactions
whether statutory or otherwise, that were affected by the
earlier law.
The Supreme Court itself has accepted that the doctrine of prospective
overruling extends to the interpretation of ordinary statutes.31 However,
in no case has the Supreme Court expressly overruled the propositions
of the Golaknath case or stated that Justice Subba Rao was incorrect.
Strictly speaking, since there was an eleven-judge bench in the
Golaknath case, no smaller bench can take a different view with regards
to the applicability of prospective overruling. However, the Supreme
Court has effectively nullified the first proposition in practice without
expressly overruling the same.32
With reference to the second proposition, it is submitted that this is
again very restrictive in nature, for it completely prevents the High
Courts from resorting to the use of this tool in any circumstance
whatsoever. This may result in the decisions of High Courts causing
injustice and undue hardship. In State of Himachal Pradesh v. Nurpur
(P) Bus Operators Union,33 the Himachal Pradesh High Court had
31 Sarwan Kumar v. Madan Lal Aggarwal, AIR 2003 SC 1475; Ganga Ram
Moolchandani v. State of Rajasthan, (2001) 6 SCC 89 32 A.P. Datar, Prospective Overruling: Correct Doctrine, Incorrect Application, (2008)
7 SCC J-41. 33 State of Himachal Pradesh v. Nurpur (P) Bus Operators Union, (1999) 9 SCC 559.
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invalidated certain amendments to the Himachal Pradesh Passenger
and Goods Taxation Act, 1955, which would take effect only from the
date of judgment. On appeal to the Supreme Court, it was held that the
High Court could not utilize the doctrine of prospective overruling, and
was obliged to declare the collection of taxes as invalid from the very
beginning.
Such a restriction serves no logical purpose, because if a High Court
abuses the device, the wide supervisory powers of the Supreme Court
would enable it to correct this abuse when the case comes up before it
on appeal.34 The importance of High Courts had been realized by Chief
Justice Ahmadi in L. Chandra Kumar v. Union of India,35 wherein he
observed:
We, therefore, hold that the power of judicial review over
legislative action vested in the High Courts under Article
226 and in this Court under Article 32 of the Constitution
is an integral and essential feature of the Constitution,
constituting part of its basic structure. Ordinarily,
therefore, the power of High Courts and the Supreme Court
to test the constitutional validity of legislations can never be
ousted or excluded.
The importance of the High Courts should, thus, not be undermined,
and innovative judicial techniques such as prospective overruling ought
to be applied by them when they deem fit. Such an approach is desirable
for two major reasons. Firstly, the process of appeal is dilatory, and
waiting for the Supreme Court to invoke the doctrine would only echo
the maxim: “justice delayed is justice denied”. Secondly, there is no
cogent reason why a court which exercises judicial review under Article
226 cannot mould relief in the form of prospective overruling. Indeed,
34 V. Reddy, Prospective Overruling: Need for a Relook, 10(1) STUDENT BAR REVIEW 93
(1998). 35 L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186.
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the powers of the High Court are wider, as the challenge under Article
226 need not be confined to fundamental rights only.36
It is, however, commendable that the judiciary is willing to change its
stance for the better. In the case of Raymond Ltd. v. State of Madhya
Pradesh,37 the Division Bench of the Madhya Pradesh High Court
invoked the doctrine of prospective overruling. The aforementioned case
dealt with a writ petition filed against the judgment of the MP High
Court in Gwalior Steels Pvt. Ltd. v. MP Electricity Board,38 wherein it
was held that a consumer is obligated to pay 40% load factor of the
contract demand every month as the minimum charge, irrespective of
whether the MP Electricity Board, taking this to be law, framed this
clause in their agreement with the petitioners. In Gwalior Steels, the
Court found no merit in the petitioner’s case claiming a reduction of
electricity charges below the monthly minimum charges, and dismissed
the petition. This decision was reversed in Raymond Ltd., wherein the
Division Bench of the MP High Court held that whenever the contracted
supply fell short of 40% of the contract load, the Electricity Board shall
be entitled to charge only for the reduced energy actually supplied and
not any higher. However, this was held to be applicable only
prospectively.
The matter went on appeal to the Supreme Court. Without explicitly
stating as to whether the High Court had the power to prospectively
overrule or not, the Supreme Court held that since this power was
anyway vested in itself, the law declared would have only future
application, as a contrary view would have serious and adverse impact
on the Electricity Board. Justice D. Raju, while disposing the appeal
observed: “The peculiar facts and circumstances of these cases and the
interests of justice, in our view, necessitate the application of the law
declared therein only prospectively.” The Supreme Court again avoided
36 Chugh, supra note 8, at 298-299. 37 Raymond Ltd. v. MP Electricity Board, (2001) 1 SCC 534. 38 Gwalior Steels Pvt. Ltd. v. MP Electricity Board, AIR 1993 MP 118.
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the issue of a High Court’s competence to make use of this doctrine in
the 2014 case of K. Madhava Reddy v. State of Andhra Pradesh.39
Furthermore, the Indian judiciary has unfortunately misunderstood the
doctrine of prospective overruling by conflating it with prospective effect
given to decisions. This doctrine, as the name itself makes it clear,
applies in the case of the overruling of an earlier judgment. Thus, there
is a conceptual distinction between prospective overruling and giving
prospective effect to decisions. Giving prospective effect to judicial
pronouncements is an inherent power of the courts and might not
necessarily involve an overruling of an earlier decision. On several
occasions, the Supreme Court has failed to draw this crucial distinction
between the two and has gone ahead by treating prospective overruling
as synonymous with prospective declaration of the law.
State of Himachal Pradesh v. Nurpur (B) Bus Operators Union40 is a
stark example of the Court’s lack of clarity on this aspect. As discussed
earlier, HP High Court had nullified certain statutory amendments
prospectively, and the validity of this decision was challenged before the
Supreme Court. The Supreme Court held that the High Court could not
utilize the doctrine of prospective overruling. By doing so, it clearly
failed to note that this was not a case of prospective overruling, but a
case where the High Court gave prospective effect to its decision.
Moreover, the Supreme Court gave no reason whatsoever as to why a
High Court could not give prospective effect to its judgements, and made
no attempt to conceptually analyse the doctrine of prospective
overruling. It is submitted that the High Courts have the inherent power
under Article 226 of the Constitution to give prospective effect to their
judgments, if it is necessary in the given circumstances.
39 K. Madhava Reddy v. State of Andhra Pradesh, AIR 2014 SC 2314. 40 State of Himachal Pradesh v. Nurpur (P) Bus Operators Union, (1999) 9 SCC 559.
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V. CONCLUSION
The doctrine of prospective overruling can be seen as a tool of general
application, which enables a court of law to meet the ends of justice. It
is one of the many judicial innovations that have been evolved over the
years. One can very well imagine the serious ramifications that would
have arisen had Justice Subba Rao in the Golaknath case held the
constitutional amendments to be invalid. In such a scenario, all the land
reform legislations enacted by various states would have fallen to the
ground, resulting in a chaotic situation throughout the country. Thus,
the invocation of the doctrine is justified in certain situations. Moreover,
considering that the judges in India have an inherent power of judicial
review, asking them to adhere to the traditional Blackstonian principles
would amount to notoriously cutting into their power.
Keeping in mind the purpose that this device serves, it is submitted that
the propositions laid down by the Golaknath case are more self-defeating
than directory, and need to be reconsidered in order to allow the use of
this device by High Courts and in cases pertaining to non-constitutional
matters as well. Furthermore, the principle of prospective overruling
should be considered to have been applied only where an earlier
judgment is overruled. This would enable the ends of justice to be served
more effectively by the Courts.
Whatever analysis we may provide for prospective overruling, in terms
of judicial philosophy, it is clear that the use of this device makes change
less disruptive, thereby making an appellate court less apprehensive of
introducing a change when it considers a new rule to be more sound than
the previous one. However, the judiciary should be cautious and must
use this sparingly, as careless usage could lead to grave injustice being
caused.
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THE NEXUS BETWEEN AUTONOMY AND RELIGIOUS
IDENTITY OF PARSI WOMEN
Priya Agrawal†
ABSTRACT
Every individual has the right to autonomy by virtue
of the personal liberty guaranteed by Indian
Constitution. This right to autonomy includes non-
interference with one’s own concept of existence and
one’s own self. Autonomy is an important tool for
carving and preserving one’s identity. However, in
the Indian patriarchal society, women are not
autonomous, and therefore, their identity is bound to
others’ recognition. A woman’s autonomy remains
hostage to community norms.
A Parsi woman marrying outside her community
may want to exercise her autonomy to remain in the
Parsi community in conflict with what how the Parsi
society identifies. This creates discord between the
individual and the community. Can she, after
exercising her right to autonomy, choose not to
secede from all the rights guaranteed to her by
Zoroastrian religion? Can she create an identity
independent of societal rules or would marriage,
which is considered to be a sacred institution, be
allowed to rob her of her identity?
This paper aims at answering these questions, which
gained prominence after a Parsi woman, Goolrokh
Gupta, married a non-Parsi and filed a Special Leave
Petition in the Supreme Court for performing the
Zoroastrian rites. This case, thereby, projects a
nexus between the autonomy and the religious
identity of Parsi women, tested on a constitutional
touchstone. The hallmark of democracy and free
† 3rd year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law,
Punjab. The author may be reached at [email protected].
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society necessitates Parsi women to define their own
identity in the midst of a conflict between the
community’s culture and the choices of the individual
women.
I. INTRODUCTION
Women have perpetually been deprived of their rights. It is always
society that comes into the picture to impose rules, whether justified or
unjustified, by offering some remote justification. The explanation is
more or less inclined towards divinity. However, the Indian Constitution
provides various provisions for the equal rights of women. The Supreme
Court has always tested the justifications on the touchstone of
constitutional morality, and protected the rights of women, and the
same is evident from the recent judgement of Indian Young Lawyers
Association v. State of Kerala.1
In ancient times, women were never allowed to identify and define
themselves. But in the recent past, with women empowerment, they
have started identifying themselves as individuals by coming out of the
shackles of society’s definitions. But due to the long-established practice
of robbing their identities, one has to go to Supreme Court in order to
legally recognize one’s right of self.
Parsi women marrying outside their religion lose their religious
identity, meaning thereby that their identity and rights are in conflict
with the religious and community norms, ignoring their autonomy. They
either can exercise their right to interfaith marriage or their right to
freedom of religion. A Parsi woman marrying outside her community
may want to exercise her autonomy to remain in the Parsi community,
in conflict with what society identifies. She may want to choose not to
secede from all the rights guaranteed by Zoroastrian religion, creating
an identity independent of the societal rules. This autonomy is
demanded by a Parsi woman, Goolrokh Gupta, who married a non-Parsi,
1 Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
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thereby projecting a nexus between the autonomy and the religious
identity of Parsi women.
The paper consists of 5 sections. Firstly, it discusses the autonomy and
religious identity that is guaranteed to every person projecting the node
between two. As the paper sees the nexus of religious identity of Parsi
women, the second section describes the status quo of right of autonomy
and religious identity of Parsi’s women. Thirdly, the paper focusses on
the move initiated by Goolrokh Gupta, demanding a change in the status
quo. Further, a section of the paper tests the autonomy and religious
identity of the Parsi women on the anvil of the Indian Constitution and
constitutional jurisprudence.
II. AUTONOMY AND IDENTITY
Article 21, guaranteeing the right to life and personal liberty,
encompasses a host of rights by way of its extended meaning, as
prescribed by the Hon’ble Supreme Court, which are considered
essential and fundamental to an individual. Autonomy is an essential
and important aspect to live an independent and dignified life.
Autonomy nourishes dignity by allowing each individual to make critical
choices for the exercise of liberty.2 Particularly, the phrase personal
liberty includes within itself the aspects of autonomy, self-determination
and personhood.3 At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of
human life.4 Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate conduct.5
The notion of the personal autonomy of every individual marches with
the presumption of liberty enjoyed in a free polity: a presumption which
2 Id. 3 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. 4 Planned Parenthood v. Casey, 505 U.S. 833 (1992). 5 Lawrence v. Texas, 539 U.S. 558 (2003).
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consists in the principle that every interference with the freedom of the
individual stands in need of objective justification.6
Autonomy must mean far more than the right to occupy an envelope of
space in which a socially detached individual can act freely from
interference, and what is crucial is the nature of the activity, not its
site.7 Autonomy provides choice to an individual with regards to one’s
own self in every facet. Autonomy is a process; being autonomous gives
human life value by allowing us to act on our own choices and
motivations.8 Without autonomy, a human cannot live a dignified life.
Human dignity, in modern times, is a value which is not just limited as
a social, philosophical or religious value, but as a constitutional value.
Human dignity, as a constitutional value, is the freedom of choice of
human beings, the autonomy of their will and their human identity.9
Human dignity and human freedom imply that a man should be free to
shape himself and his fate in a way that he deems best fits.10 A sense of
one's own personal identity is crucial to human beings and without a
sense of identity, the self can disintegrate, be lost, obscured and
vulnerable.11 A person is commonly identified by the identity he or she
creates. Identities have been defined as “the fundamental bases upon
which society, independent of the special and unique features of each
individual, orders and arranges its members”.12 Furthermore, identity
is seen as “an individual’s sense of self, group affiliations, structural
6 R. (on the application of Wood) v. Commissioner of Police of the Metropolis, (2009)
EWCA Civ. 414. 7 National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 SCC
OnLine ZACC 15. 8 ROS HAGUE, AUTONOMY AND IDENTITY: THE POLITICS OF WHO WE ARE (Routledge
2011). 9 Aharon Barak, Human Dignity: A Constitutional Value and the Constitutional
Right, 192 PROC. BR. ACAD. 361, 363 (2013). 10 Cossey v. UK, (1990) 13 EHRR 622. 11 ANTHONY ELLIOTT, CONCEPTS OF THE SELF (Cambridge: Polity Press 2001). 12 Morris Rosenberg, The Self-Concept: Social Product and Social Force, in SOCIAL
PSYCHOLOGY: SOCIOLOGICAL PERSPECTIVES 593, 601 (Morris Rosenberg & Ralph H.
Turner eds., 1981).
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positions, and ascribed and achieved statuses”.13 Wendy Cadge and Lynn
Davidman have observed that religious identity “is a matter of both
ascription and achievement, meaning that it is often viewed as a
combination of something that is determined by birth and also the result
of conscious choices made over the course of one’s life”.14
By recognizing our liberty as autonomous persons, the Constitution
recognizes our ability to preserve and shape our identities in our
interactions with others.15 Autonomy is important to identity because it
offers the prospect of taking control of identity and the means for self-
definition.16 Autonomy is just a tool to carve and preserve our identity,
and the relevant question is not: “How do you want to exercise your
autonomy”, but: “How do you define yourself”.17 But sometimes, our
identity is bound to others’ recognition, and remains hostage to
community norms. This view allows for the common conflict between the
individual and the society: while we feel autonomous standing up for
what we feel ourselves to be, society can only understand autonomy as
the preservation of our social identity.18 An individual is, thus, forced to
choose between their self-identity or social identity.
We think of ourselves as the authors of our own lives, but in many
respects, we have little authority over our identities, because our
identities are contingent and malleable, created and documented by
others.19 We have a pen and a blank notebook to write in; however, the
writing is subject to the dictation of society. In the Indian patriarchal
society, a woman’s identity is not just dictated but written by the society
itself. They are always identified in relation to their fathers before
13 Lori Peek, Becoming Muslim: The Development of a Religious Identity, 66 SOC.
RELIGION 215, 216–17 (2005). 14 Wendy Cadge & Lynn Davidman, Ascription, Choice, and the Construction of
Religious Identities in the Contemporary United States, 45 J. SCI. STUD. RELIGION 23,
24 (2006). 15 K S Puttaswamy v. Union of India, 2018 SCC OnLine SC 1642. 16 Hague, supra note 9. 17 JC Correia, Autonomy and Identity, 26 J. MED. ETHICS 141, 141 (2000). 18 Id. 19 Annette R. Appell, Certifying Identity, 42 CAP. U. L. REV. 361, 365 (2014).
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marriage, and their husbands after marriage. Even the surname of a
woman gets merged with that of her husband. Thus, women’s
autonomous personae are traditionally challenged and confined within
their families, kin and communities. Questions about women’s
autonomy have been historically to be subsumed within the questions of
religion, community and personal laws, and hardly ever treated as a
matter of individual right or justice.20
III. PARSI’S RELIGIOUS IDENTITY
Parsis in India are the descendants of migrants from Persia, who left
their fatherland in order to escape religious persecution by the Arabs.
Since then, they have lived in India, keeping a separate identity despite
adopting many local customs and practices.21 They continue to follow the
religion of their forefathers, and have erected Agiaries and Dokhmas for
the performance of religious worship. It is the Zoroastrian religion to
which the Parsis have remained faithful, and which has molded the
admittedly high civilization and culture of the Parsis, and made them
conspicuous among the teeming millions of the Indian population.22
According to the concept of purity in Parsi, only Parsis are allowed to
enter the fire temple (Agiaries) and towers of silence (Dakhmas).
Agiaries are the places where the holy fire is kept lit. A woman marrying
outside community is deemed to have denounced her Parsi religion and
is identified by her husband’s religion. As a result, women engaging in
interfaith marriages are not permitted to enter the fire temple and
towers of silence, because as per their faith, among the various symbols,
fire is the symbol of purity. However, a male engaging in interfaith
marriage is allowed to enter the fire temple and towers of silence. The
Bombay High Court asserted that the plaintiff (male), born of Parsi
20 Paula Banerjee, Debates on Women Autonomy in India, MAHANIRBAN CALCUTTA
RESEARCH GROUP, 2005 (Jul. 6, 2018), http://www.mcrg.ac.in/pp4.pdf. 21 Kamala Ganesh, Intra-community Dissent and Dialogue: The Bombay Parsis and
the Zoroastrian Diaspora, 57 SOCIOLOGICAL BULLETIN 315 (2008). 22 J. M. Unvala, Political and Cultural Relations between Iran and India, 28 ANNALS
OF THE BHANDARKAR ORIENTAL RESEARCH INSTITUTE 165 (1947).
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parents and marrying non-Parsis, is undoubtedly entitled to enter the
Agiary, and make as much use of it as any other Parsi is entitled to, to
participate in every fund that exists for the benefit of all Zoroastrians,
and as a matter of right, to have his bodies disposed of in a Dokhma.23
The Parsi rule is similar to patrilineality within the Hindu caste system,
which formally enjoins endogamy, but accepts hypergamy, whereby a
male from an upper caste is permitted to marry a woman from a lower
caste, but not the other way around: the well-known dichotomy between
anuloma and pratiloma norms.24
It implies that a woman is autonomous to marry a Parsi or a non-Parsi.
However, her identity is merged with the identity of her husband in case
she marries a non-Parsi. She is not autonomous to choose her identity if
she marries a non-Parsi. A woman’s identity is defined by the orthodox
Parsi norms. These norms closely supervise and control marriages,
especially of women, and act as gateways to the system. Women have to
remain within the gateways in order to define their religious identity as
per their own choice.
A judgment by judges Dinshaw Davar and Frank Beaman25 stated that
a Parsi can only be so termed if he or she is born of a Parsi father. Then
why does the identity of a woman born of Parsi parents cease to remain
Parsi after an interfaith marriage? There exists no legal justification for
the same. Jehangir Patel, editor of community magazine, “Parsiana”
says, “It’s been over 100 years now. Unfortunately, no woman has taken
up the issue in a big way.” However, Goolrokh Gupta took up the issue
and made a move against this orthodox mindset.
IV. MOVE AGAINST THE STATUS QUO OF RELIGIOUS
IDENTITY
23 Dinsha Manekji Petit v. Jamsetji Jijibhai, (1909) 11 Bom LR 85. 24 Ganesh, supra note 22. 25 Dinsha Manekji Petit v. Jamsetji Jijibhai, (1909) 11 Bom LR 85.
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Goolrokh Gupta, from Valsad, Gujarat, was born in the Parsi
community, and later engaged in interfaith marriage. She had seen her
Parsi friend being denied attendance to her parent’s funeral rites. She,
therefore, wrote to Valsad Anjuman insisting to enter the Doongerwadi
(place where funeral rites took place) when her parents would die. The
response was negative. Therefore, she petitioned before the Gujarat
High Court seeking the issuance of a writ against the trust so as to allow
her and any other Parsi Zoroastrian woman married to a non-Parsi to
enter and worship at the fire temple and perform funeral ceremonies at
the tower of silence.26 However, the Gujarat High Court ruled against
her. Therefore, the matter was taken up to Supreme Court, and the case
will come up for final hearing in the month of August. Amidst hearings,
the parties have agreed and declared that the respondents will, on
compassionate grounds, permit the petitioner to attend the funeral
prayers (Paidust ceremony) of her parents performed inside the Prayer
Hall of the Bungli (bungalow) of the Tower of Silence Complex
(Doongerwadi) at Valsad, through a filed memorandum.27
The High Court, while ruling, stated that the personality of a woman,
including her identity, gets merged with the identity of her husband.
The High Court had relied on common law for this doctrine. However,
common law has itself abandoned this doctrine. The ruling that a
woman marrying under the Special Marriage Act automatically
undertakes the religion of her husband seems unfair. The Supreme
Court observed as under:
The purpose of the Act of 1954 is for the parties to the
marriage to retain their individual religious identity post
marriage. If either party had to convert to the religion of the
other, then they would have solemnized the marriage under
the Hindu Marriage Act of 1956. Unless the wife expressly
denounces her religion and converts to the religion of her
husband, logically there is a presumption that she is
26 Goolrokh M. Gupta v. Burjor Pardiwala, 2012 SCC OnLine Guj 2058. 27 Goolrokh M. Gupta v. Burjor Pardiwala, 2017 SCC OnLine SC 1275.
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continuing to practice her own religion. Prima facie there is
no case for accepting the application of the doctrine of
merger.28
V. ON THE ANVIL OF THE CONSTITUTION
Autonomy is an integral part of right to personal liberty. The norms of
a particular community seem to reduce such autonomy, especially for
women. Autonomy could be coloured, because sometimes, people have to
make decisions under fairly intense pressure to do and think as most
other people are doing and thinking, especially within a community.29
Individual decision may be influenced by friends, community, etc. Prima
facie, the decision of an individual appears autonomous, but viewing it
from a broad framework will bring to notice its actual colour and
reasoning.
Humans, being social beings, have to live in a society and follow societal
norms, which are mostly based on the community they belong to. At
times, the community norms reflect inadequate respect for autonomy
and thereby, individual liberty. The magnitude of interference with
autonomy increases when these community norms are prima facie
discriminatory on the basis of gender. This kind of discrimination
because of the community norms could undermine autonomy by
attacking the self-respect of those discriminated against.30 Therefore, it
shows inadequate concern for the welfare and identity of the one
discriminated against, leaving them with inadequate resources for an
autonomous life.31
28 Id. 29 Farrah Ahmed, Personal Autonomy and the Option of Religious Law, 24 INT J LAW
POLICY FAMILY 222 (2010). 30 J Gardner, Discrimination as Injustice, 16 OXFORD J. LEGAL STUD. 353 (1996). 31 Hasan, Two recent reports Voice of the Voiceless and Muslim Women Speak detail
innumerable instances of distress, which reveal that in most situations personal law
undermines the rights of women, especially poor women caught in the intersection of
class and community 362 (2005).
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Women are always subjected to this kind of gender bias. Parsi norms,
not being an exception, are inclined towards the men. It is
discriminatory to the extent that religious identity of the woman is left
completely bereft when they try to exercise their right to choose a life
partner outside their religion, which is fundamental to their autonomy.
Community norms pressurize the woman. Women are able to be
autonomous because of the fundamental rights guaranteed by the
Indian Constitution; however, sometimes, this autonomy is overpowered
by community norms in the disguise of personal laws.
The question of professing, practicing and propagating one’s faith is a
right which human beings had from the very beginning of time and that
has been recognised as an inalienable right of every human being.32 How
then, under a secular Constitution, can Parsi women not be autonomous
on account of their religious identity?
Article 25 gave the autonomy to profess the religion one wishes to. It
thereby implies that one has the autonomy to choose whichever religion
she wants to practice or profess, because religion is a matter of choice.
This autonomous choice will define one’s religious identity. Linking this
fundamental freedom with the liberty of belief, faith and worship
indicates that the religion cannot be dictated.
However, a Parsi woman does not have the autonomy to define her
identity after engaging in an interfaith marriage. Her autonomy to
marry a Parsi or non-Parsi does not allow her to define her identity. Her
identity is defined according to the community norms. It is ironical that
on one hand, the Constitution allows the right to freedom of religion,
and on the other hand, it imposes deemed conversion on Parsi women
after marriage. How can the identity of the Parsi woman guaranteed by
the Constitution be inferior to the identity defined by the community
norms? This constitutional identity permitting autonomy cannot be
allowed to be suppressed by the community norms prescribing a Parsi
women’s religious identity.
32 Constituent Assembly Debates, 6 Dec 1948, Vol. VII.
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The Special Marriage Act 1954 seems to be strengthening the freedom
of religion by providing a special form of marriage irrespective of the
faith which either party to the marriage may profess.33 The purpose of
the Special Marriage Act, which allows the interfaith marriages, is to
retain the religious identities of the persons engaging in interfaith
marriages. If the religion will be automatically deemed to be converted
on marrying outside the community, then what is the use of this law?
The Act is in prima facie conflict with the doctrine of merger with the
husband. It implies that the Gujarat High Court neglected the purpose
of the Special Marriage Act and the autonomy that a woman has in order
to define her identity, while giving a decision based on this doctrine of
merger. The Court has interpreted a secular and progressive law in an
archaic and patriarchal way, which is based on the ancient feudal idea
that women are chattel, their identity belonging to either their father or
their husband, but never themselves.34
The doctrine of merger advocated by Gujarat High Court, thereby
surpassing the autonomous right of Parsi women due to community
norms, cannot be acceptable because it infringes their fundamental
rights. It makes Parsi women like chameleons who have to change their
colour after an interfaith marriage. It seems that marriage within the
community becomes a condition precedent for Parsi women to enjoy civic
and political rights, thereby denying them autonomy over their identity.
The doctrine overrules religious freedom by allowing the official
gatekeeper to dictate the religion of the Parsi women. The Supreme
Court, in Shayara Bano v. Union of India,35 affirmed the primacy of
constitutional values over the mandate of such official gatekeepers.
Even the limitation imposed seems arbitrary because this limitation is
not uniform. It seems to be at the discretion of the trust to define the
identity of Parsi women without any religious backing or justification.
33 Section 4 of the Special Marriage Act, 1954; see Statement of Object and Reason. 34 Satya Prasoon and Ashwini Tallur, Rescuing Individual Rights from the Chokehold
of Groups Rights, THE WIRE, Dec. 3, 2017, https://thewire.in/law/constitution-
individual-group-rights-religion. 35 Shayara Bano v. Union of India, (2017) 9 SCC 1.
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If there exists a religious backing for deemed conversion and prohibiting
the Parsi women marrying non-Parsi people, then why did the trust
permit the court to decide an interim relief? Why did the trust agree to
allow the Goolrokh Gupta to attend the funeral rites by way of
memorandum? There are places like Delhi, Iran, Chennai, Allahabad,
etc. where women marrying non-Parsi persons are permitted to attend
the Zoroastrian religious rites or ceremonies. Indian Parsis are
advocates of the Iranian culture and that Iranian Zoroastrians are open
in accepting non-Zoroastrian spouses, i.e. if you go to Iran, there is no
discrimination whatsoever. Anyone and everyone is allowed to enter a
fire temple.36 It, thus, implies miscommunication by the Indian religious
denomination.
The reasoning of purity given by the Parsis does not hold valid because
of its failure to answer the sex-based discrimination which is prohibited
by Article 15. Unlike the Parsi women, a Parsi man has the autonomy
to define their identity to practice the religion they want. This
community norm of the Parsis is a clear violation of Article 15.
The Constitution is a living document with enormous dynamism and for
India to become a progressive nation, Dr Ambedkar had felt that the
Constitution should be allowed to live and grow on the bedrock of
constitutional morality. He, while speaking on the same, said:
Constitutional morality is not a natural sentiment. It has to
be cultivated. We must realise that our people have yet to
learn it. Democracy in India is only a top-dressing on an
Indian soil, which is essentially undemocratic.37
Constitutional morality means bowing down before the constitutional
norms and values.
Parsi women’s religious identity is in conflict with the constitutional
value of autonomy guaranteed by liberty. It appears that the rules are
36 Jyoti Shelar, The Conflict Within: Parsis and Gender Rights, THE HINDU, May 25,
2017, https://www.thehindu.com/news/cities/mumbai/the-conflict-within-parsis-and-
gender-rights/article18520582.ece. 37 Constituent Assembly Debates, 1948, Vol. VII.
INDIAN CONSTITUTIONAL LAW REVIEW
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barbaric and contain no nexus with the autonomy that a woman has to
define her identity. They seems to be classifying women as secondary
parts of the community. It, thus, becomes violative of the rule of law by
acting arbitrarily, because when the caste of a person cannot be changed
after inter-caste marriage, then how can the religion of a woman be
allowed to change after her interfaith marriage?
The traditions and conventions of the Parsis have to grow in order to
ensure adherence to constitutional morality. The democratic values
survive and become successful where the people at large and the persons
in charge of institutions and communities are strictly guided by
constitutional parameters, and reflect in action the primary concern to
maintain institutional integrity and requisite constitutional
restraints.38 Thus, the identity of the Parsi women should be left in their
own hands.
VI. JURISPRUDENTIAL JUSTIFICATION
Traditionally, independence is connoted by the autonomy which reflects
individualism. J S Mill is an ardent supporter of individualism.
According to him, “Over himself, over his own body and mind, the
individual is sovereign.”39 Mill expounds the concept of individual
freedom. The matters involving the most intimate and personal choices
a person may make in a lifetime, and choices central to one’s personal
dignity and autonomy, are all central to the liberty.40 When Parsi
women do not have control over themselves, how could they be a
sovereign entity in respect of their life? Parsi women too should have
sovereignty over their religious identities after they exercise their right
to choose their life partner.
38 SALMAN KHURSHID, TRIPLE TALAQ: EXAMINING FAITH (Oxford University Press
2018). 39 JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS (Oxford University Press
1859). 40 Planned Parenthood v. Casey, 505 U.S. 833 (1992).
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Aristotle's argument concerns the question of what it is that makes an
action voluntary, i.e. done of a person's own free will, and in order to
answer this question, he distinguished between actions whose origin
was inside a person, and those whose origin was outside, i.e. which
resulted from external influences or pressure or compulsion.41 But in the
model of autonomy, an autonomous action is seen as its point of origin;
it must have an immaculate conception, as it were, from within the self.42
Parsi women marrying outside community is an action from within; it is
an autonomous action whose origin lies inside. However, the acceptance
of religious identity as non-Zoroastrian comes from outside, thereby
becoming non-autonomous. It is the severity of pressure from the society
that would make an action non-voluntary. Parsi women like Goolrokh
Gupta, who did not accept their identity from outside, keep challenging
such decisions in order to exercise her own free will. They desire
autonomy in a clear and comprehensible manner, by demanding their
religious identity originating from the inside.
Marshall suggests three characteristics which are crucial to perhaps
everyone's identity: “sex, knowledge and understanding of one's origins
and past experiences, and one's religious or other belief system”.43 When
a Parsi woman experiences and practices Zoroastrian religion, then her
identity after marriage cannot automatically be deemed to be changed.
However, her identity is largely created by social forces. It remains
hostage to the community norms. Women are not allowed to take an
independent and autonomous decision with regards to their own
identity. A woman being acquainted with her past experiences and
origins that define her identity has the right to understand and
experience her future identity the way she likes.
41 J Grimshaw, Autonomy and Identity in Feminist Thinking, in FEMINIST
PERSPECTIVES IN PHILOSOPHY (M. Griffiths and M Whitford eds., Macmillan, London
1988). 42 Id. 43 LEIDEN MARSHALL, AUTONOMY, IDENTITY AND INTEGRITY UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 5 (Martinus Nijhoff Publishers 2009).
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Ros Hague, in his book “Autonomy and Identity: The Politics of Who We
Are”, sees autonomy as a process by which we change and develop our
identity. Hague argues that identity is best understood as changing,
multiple and something we need to take control of ourselves and in order
to support this version of identity, there needs to be a concept of
autonomy which emphasizes self-direction to control our identity.44 His
concept of autonomy aims to be feminist in order to give space to women
to develop their identity rather than conforming to social stereotypes. It,
therefore, supports the autonomy of Parsi women to control and create
their identity without meeting the requirements of societal labels.
Women are encouraged to take control of themselves, and support their
identity by way of exercising autonomy rather than remaining parasitic
to the social order in order to project their identity.
VII. CONCLUSION
Discourses on women’s autonomy have always remained subsumed
within other discourses such as those on rights and representations,
because the Indian society, even till the recent past, did not treat women
as autonomous subjects.45 It was only after women successfully led
autonomous movements in different parts of India from the 1980s till
the present times that there emerged a growing realisation that women
are autonomous subjects even when they represent their communities.46
However, Parsi women have still lagged behind. The movement led by
the non-Parsi women demanding their religious identities will help
them to achieve an autonomous status.
The crux of the problem lies in the fact that women are treated as part
of families and communities, and not as individuals.47 Each individual
exists within a particular culture and is immersed in it from birth,
44 Hague, supra note 9. 45 Banerjee, supra note 21. 46 Id. 47 RANABIR SAMADDAR (ED.), THE POLITICS OF AUTONOMY: INDIAN EXPERIENCES (Sage
Publications Inc. 2005).
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including the immersion in a particular religion or political ideology.48
The choice of religious identity is involuntary for a Parsi woman when
her individual rights are automatically superseded on engaging in an
interfaith marriage. Acceptance of changing the surname as a
community norm after marriage could not be taken as a license for
changing her religious identity as well.
Parsis claim exclusive rights to Zoroastrianism, so making this ethnic
sacrifice may be the only way to save their ancient religion. Some 1,200
years ago, did their forefathers not bravely abandon their millennia-long
Persian identity for a worthier cause?49 Allowing women to exercise
their freedom will encourage the people to profess and practice the
religion from their heart rather than out of compulsion.
A Parsi woman’s identity should not be curtailed by anyone other than
the woman herself. She is not a property that is mortgaged to her
husband after the marriage. She should have the right, therefore, after
exercising her right to autonomy, to choose not to secede all the rights
guaranteed by the Zoroastrian religion, because it is her identity and
she has the absolute right to define the same. Her religious identity
should, apart from birth, result from the conscious choices she makes
during her life. There are numerous constitutional and jurisprudential
arguments in favour of the autonomous religious identity of Parsi
women. If the Supreme Court agrees with the autonomous religious
identity, then how can the community norms curtail or overpower that
supreme authority? Law should take care of the Parsi women’s interests
as they are a fundamental unit of the society. Law should act as a
negotiation between the individual and the community. Along with the
law, the individuals should also concert commitment for the cause. After
all, laying the strong foundation of the Constitution is the duty of every
48 Dinah Shelton, On Identity, 49 GEO. WASH. INT'L L. REV. 1 (2016). 49 Bachi Karkaria, Intermarry and be Damned: 2 Parsi Women Challenge Bias, THE
TIMES OF INDIA, May 21, 2017,
https://timesofindia.indiatimes.com/blogs/erratica/intermarry-and-be-damned-2-
parsi-women-challenge-bias/.
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citizen of the country and overpowering it will result in the interference
in the operation of the law.
The tradition of local autonomy and individual conscience amongst the
Parsis make it difficult to enforce any autonomous decision by the Parsi
women in relation to their identity, and democratic discussion is
virtually the only way forward, uncertain though its outcome may be.50
Women, in a democracy, should create an identity independent of the
societal norms. It is true that the identity keeps on changing but that
change should not be because of force or pressure; instead, it should be
independent. The hallmark of democracy and free society necessitates
Parsi women to define their own identity in conflict with their culture.
One should always remember the observation made by Justice Kennedy
in Obergefell v. Hodges,51 which emphasized liberty’s protection of
“certain personal choices central to individual dignity and autonomy,
including intimate choices that define personal identity and beliefs.”
Marriage, which is considered to be a sacred institution, should not
become a weapon to rob the identity of women.
50 Ganesh, supra note 22. 51 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
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THE CONSTITUTIONALITY OF A BEEF BAN
Himanshu Mishra†
ABSTRACT
The paper deals with the constitutionality of a ban
on beef and the restriction on the slaughtering of
cattle. Various states have enacted legislation to put
up an absolute ban on slaughtering of certain
animals. The Supreme Court, since the enactment of
the Constitution, in a number of cases, has dealt with
these issues. The Supreme Court, in 2005, upheld a
ban on slaughtering of bull, bullock and cow as
constitutional and a reasonable restriction on the
exercise of the fundamental right to trade and
profession. This paper aims to argue that the beef
ban is unconstitutional and is against the secular
and democratic setup established by our
Constitution.
The paper aims at critically investigating the ways
in which the constitutional courts have addressed
this issue, and has thoroughly analysed various
cases and offered a critique of the approach taken by
them. In the paper, it is argued that courts have
misconstrued the constitutionally guaranteed
fundamental rights and the provisions of the
directive principle of state policy. Imposing a ban on
slaughtering of cattle (including a cow) above a
certain age, especially when they become useless, is
an unreasonable restriction on the fundamental
right of butchers. The ban on beef also has
repercussions relating to religious freedom and
lifestyle of minorities. It also threatens the
constitutional commitment to equal and fair
treatment to all.
† 3rd year law student at National Law University, Delhi. The author might be
reached at [email protected].
INDIAN CONSTITUTIONAL LAW REVIEW
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I. INTRODUCTION
The issue of cow slaughter and consumption of beef is a very heated and
politicised issue in India. The cow is considered to be sacred and is
revered by the Hindus, who comprise 80% of the Indian population. The
renowned author, D.N. Jha has argued that sacredness of the cow is a
myth to which fundamentalist Hindu organisations have clung.1 Rather,
various verses and several historical segments suggest that practice of
eating beef was an essential part of the religion for some sects amongst
the Hindus. The sacredness of the cow has often served as a tool for
political mobilisation in modern India, especially during the colonial
period, as the practices of cow slaughter and beef eating significantly
intensified with the arrival of the British in the eighteenth century.2
In India, the right-wing government is now hankering after imposing a
ban on beef. Twenty states in India have already prohibited a ban on the
sale and consumption of beef.3 Some authors claim that today’s
legislation for banning beef is more daunting than the previous one
because of stringent punishment, which will be carried out by the
Hindu-pleasing Government under the guise of cow protectionism. In
2015, there were a plethora of anti-beef legislations and a lot of debate
was centered around the amendment of the Maharashtra Animal
Preservation (Amendment) Act. This anti-beef legislation is said to
derive its legitimacy from Article 48 of Indian Constitution. Different
states in India have imposed different restrictions on the slaughtering
of cattle, on the transport of cattle for slaughter, and for the sale,
possession and consumption of beef.
1 DWIJENDRA NARAYAN JHA, THE MYTH OF THE HOLY COW (Navayana Publishing
House 2015). 2 Aurélien Bouayad, Law and Ecological Conflicts: The Case of the Sacred Cow in
India, 12(2) SOCIO-LEGAL REV. 105 (2016). 3 The states where cow slaughter is legal in India, THE INDIAN EXPRESS, Jan. 31,
2019, https://indianexpress.com/article/explained/explained-no-beef-nation/.
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1. IN THE CONSTITUENT ASSEMBLY
In the Constituent Assembly, the ban on cow slaughter was one of the
most contentious issues. The proponents of such a ban emphasised the
sentiments of the majority of the population, i.e. the Hindus. They also
argued that cattle are indispensable for an agrarian economy and hence,
they exhorted the incorporation of this ban in the fundamental rights.4
But it would be imprudent to give cattle fundamental rights. So, the
Constituent Assembly decided to put this in the Directive Principle of
State Policy (specifically, Article 48 of the Constitution), which will
guide the state in policymaking, but will remain directly unenforceable
in any court of law.
Article 48 runs as, “state shall organise agriculture and animal
husbandry on modern and scientific lines and shall, in particular, take
steps for preserving and improving the breeds, and prohibiting the
slaughter, of cows and calves and other milch and draught cattle”.
However, both the proponents and the dissenters objected to the position
being made concrete. Therefore, the members who drafted the provision
made the position on the issue of cow slaughter unclear and left it to
future interpretation.
Preservation, Protection and Improvement of Stock was then
incorporated under the State List, thus empowering the states to
separately legislate on the issue.5
II. JUDICIAL ATTITUDE TOWARDS THIS ISSUE
There have been a series of cases which dealt with this issue. The first
significant case came before Supreme Court in the matter of Hanif
Qureshi v State of Bihar,6 where the absolute ban on the slaughter of
cows was held to be valid. However, the Court held the ban on
4 Ministry of Agriculture, Government of India, REPORT OF THE NATIONAL
COMMISSION ON CATTLE (2002). 5 Entry 15 of List II of the Seventh Schedule of the Constitution of India, 1950. 6 Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.
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slaughtering of bulls and bullocks above the age of 16 as
unconstitutional. The most landmark case in this matter is the State of
Gujarat v. Mirzapur Moti Kureshi,7 where a seven-judge bench of
Supreme Court, dealing with Bombay Animal Preservation (Gujarat
Amendment) Act, 1994, upheld the ban on the slaughter of bovine
animals (cow, bull and bullocks) and any kind of beef. In the Mirzapur
Kureshi case, the Supreme Court delved deeper into the religious,
cultural, economic and constitutional aspects. The paper will thoroughly
analyse the interpretation of the Supreme Court in this case and will
critique it on the constitutional law points.
The latest case came before Bombay High Court in Shaikh Zahid
Mukhtar v State of Maharashtra,8 where the Court upheld the
impugned amendment of 2015 of Maharashtra Animal Preservation
(Amendment) Act, 1995. The Bombay High Court was bound by
precedent set by the Mirzapur Kureshi case, and in their 90-page long
judgment, they cited the case extensively. But the High Court
scrupulously upheld the right to privacy as an integral aspect of the
right to life and personal liberty, and struck down Section 5-D of the
impugned Act, which criminalized possession of the flesh of any cow,
bull or bullock slaughtered outside the State of Maharashtra.
1. CONSTITUTIONAL MISADVENTURE BY THE SEVEN JUDGE BENCH
The constitutional bench of seven judges in Mirzapur Kureshi
overturned the decision of the Gujarat High Court in a civil appeal. The
Gujarat High Court declared Section 2 of the Bombay Animal
Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of
1994), which introduced certain amendments in Section 5, as
unconstitutional. The High Court held that the impugned Act imposed
an unreasonable restriction on fundamental rights and is, therefore,
unconstitutional. The Supreme Court dealt with these issues:
7 State of Gujarat v. Mirzapur Moti Kureshi, AIR 2006 SC 212. 8 Shaikh Zahid Mukhtar v. State of Maharashtra, 2016 SCC OnLine Bom 2600.
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a. Whether an absolute ban restricted the fundamental rights of
butchers guaranteed under Article 19(1)(g)?
b. Whether an absolute ban was in the interest of the general public?
c. Whether Article 48 justifies the action of the state legislature of
imposing a ban on the slaughter of cattle?
They put heavy reliance on the Directive Principles of State Policy
(hereinafter, “DPSPs”), and gave less importance to the fundamental
rights, and it is implicit that they were inclined towards a majoritarian
view and the sentiments of a particular religion. The fundamental rights
of the butchers were, thus, denied on vague grounds.
2. THE SCOPE OF DPSPS AND ITS CLASH WITH FRS
After the enactment of the Constitution, the court had to deal with many
issues where the DPSPs and the fundamental rights were in conflict.
Article 37 explicitly says that provisions contained in Part IV of the
Constitution, i.e. the DPSPs, are not enforceable in a court of law. In
1951, the Supreme Court, in the case of Deep Chand v. State of Uttar
Pradesh,9 held that DPSPs have to run subsidiary to fundamental
rights. But the whole scenario was overturned after the case of His
Holiness Kesavananda Bharati Sripadagalvaru v. Union of India,10
wherein the Court held that the DPSPs have to be kept in mind while
judging the reasonableness of the fundamental rights. Thus, the Court
must try to strike a just balance between the two. Hence, fundamental
rights no longer hold a superior position to DPSPs.
The Supreme Court, in the case of Pathumma v. State of Kerala,11 laid
down the following tests to determine the reasonability of a legislation
which imposes any restriction on a fundamental right –
9 Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. 10 His Holiness Kesavananda Bharati Sripadagalvaru v. Union of India, (1973) 4 SCC
225. 11 Pathumma and Ors. v. State of Kerala and Ors, [1978] 2 SCR 537.
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(a) DPSP needs to be considered. (Para 8)
(b) The restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirements of the interests of
the general public. The legislature must take intelligent care
and deliberation in choosing the course which is dictated by
reason and good article and the social control permitted by the
restrictions under the article. (Para 14)
(c) No abstract or general pattern or fixed principle can be laid
down so as to be of universal application. It will have to vary
from case to case and having regard to the changing
conditions, the values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances all of which must enter into the judicial verdict.
(Para 15)
(d) The Court is to examine the nature and extent, the purport
and content of the right, the nature of the evil sought to be
remedied by the statute, the ratio of harm caused to the citizen
and the benefit conferred on the person or the community for
whose benefit the legislation is passed. (Para 18)
(e) There must be a direct and proximate nexus or a reasonable
connection between the restriction imposed and the object
which is sought to be achieved. (Para 20)
(f) The needs of the prevailing social values must be satisfied
by the restrictions meant to protect social welfare. (Para 22)
(g) The restriction has to be viewed not only from the point of
view of the citizen but the problem before the legislature and
the object which is sought to be achieved by the statute. In other
words, the Court must see whether the social control envisaged
by Article 19(1) is being effectuated by the restrictions imposed
on the fundamental right. However important the right of a
citizen or an individual may be it has to yield to the larger
interests of the country or the community. (Para 24)
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In the Mirzapur Kureshi case, unnecessary emphasis was given to the
DPSPs and they were implicitly treated as superior to the fundamental
rights. The absolute prohibition on slaughtering was wrongly held to be
in public interest. As was rightly held in the case of Mohd. Faruk v. State
of Madhya Pradesh,12 wherein the Supreme Court struck down a
notification issued in Jabalpur prohibiting the slaughter of bulls and
bullocks along with other animals, the sentiments of a particular section
of the people should be irrelevant in imposing a prohibition.
Nonetheless, the Court went contrary to this case as well, and it is
understood that the judges were affected by their own biases and
political notions.
In Hanif Qureshi, Supreme Court upheld the absolute prohibition of
slaughtering of cows (of all ages) and bulls and bullocks below the age of
16. But it held the absolute prohibition on the slaughtering of bulls and
bullocks above 16 to be unconstitutional and in violation of the
fundamental rights of butchers, as guaranteed under Article 19(1)(g).
Article 48A13 and 51A(g)14 were introduced after the case of Hanif
Qureshi, and the Court, in Mirzapur Kureshi, erred in saying that Hanif
Qureshi would have decided otherwise, had these two DPSPs been in
place. Article 48A only talks about safeguarding forests and wildlife,
which is an entirely different matter from the issue at hand. On the
other hand, Article 51A(g) talks about protection of wildlife and
compassion for living creature. It is evident from these provisions that
the intention of the legislature is only confined to wildlife and not on
domestic animals. Cattle are used for milk, they are kept on farms, and
after they become useless, they are sent to slaughterhouses. Therefore,
there is a distinction between domestic animals and wildlife. This might
be an issue relating to compassion for living creatures, but then, it has
12 Mohd Faruk v. State of Madhya Pradesh, [1959] S.C.R. 629. 13 Article 48A. “Protection and improvement of environment and safeguarding of
forests and wildlife The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country”. 14 Article 51A. (g) “to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures”.
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to be seen from a different perspective. The expression compassion for
living creatures nowhere entails that slaughtering of all animals must
be prohibited. Therefore, since living creatures comprise all animals,
there seems no reason why compassion should be extended to only one
category of animals.
They also misconstrued the intention of the legislature in interpreting
Article 48, which prohibits “the slaughter of cows and calves and other
milch and draught cattle”. The prohibition of the slaughter of cows has
to be read in conjunction with other milch and draught cattle, which
suggests that as long as they are useful as draught and milch, they
should be prohibited from slaughtering. Therefore, it cannot be inferred
that it talks about prohibition even after a particular age, when they
become useless both as draught and milch animals. But they
conveniently observed that the “constitutional position on Article 48 is
well settled” and left no scope for further interpretation. As was rightly
observed in the case of Hasmattullah v. State of Madhya Pradesh,15
“absolute ban on the slaughter of bulls and bullocks is not necessary for
complying with Article 48 of the Constitution”. In Hashmattullah, a
three-judge bench held that a total ban on the slaughter of bulls and
bullocks in the State of Madhya Pradesh was unconstitutional.
This avant-garde interpretation of Article 48 must be undertaken in
light of the fact that our Constitution follows the doctrine of the living
tree. As was observed in the case of Supreme Court Advocates on Record
Association v. Union of India,16 “The Framers of the Constitution planted
in India a living tree capable of growth and expansion… 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.”
15 Hasmattullah v. State of Madhya Pradesh, AIR 1996 SC 2076. 16 Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC
441.
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III. RAMBLING ON THE FUNDAMENTAL RIGHTS
1. ARBITRARY CLASSIFICATION UNDER ARTICLE 14
Article 14 talks about the right to equality. It prohibits any kind of
unreasonable classification. The classification cannot be arbitrary, but
must have reasonable nexus with the object of the legislation. Article 14
does not apply where unequals are treated differently. To test whether
any legislation has reasonably classified persons, it must fulfil two
conditions:
a. That the classification which distinguishes one group of people
from the others must be based on the principle of intelligible
differentia, and cannot be arbitrary or evasive; and
b. The classification must have reasonable nexus with the object
that is sought to be achieved by the legislation.
The Court, in the case of Hanif Qureshi, classified the cow as a type of
cattle which is distinct from bulls and bullocks. They differentiated cows
on a flawed and arbitrary basis by observing that cow yields lesser milk
as compared to buffaloes and therefore, needs more protection, whereas
sheep and goat yield even lesser milk and therefore, have no utility. On
this basis of classification of cattle, the butchers of a particular section
of cattle, i.e. cows, were also categorised as a distinct class, and it was
observed that the right to equality under Article 14 has not been
violated.
This way, they held that the classification is based on intelligible
differentia, and has a reasonable nexus to object that the legislation
sought to achieve. This reasoning of the court was upheld in Mirzapur
Kureshi. Ultimately, on the underpinning of extending protection to
cows and tagging them as weak animals, absolute prohibition on the
slaughter of cows was upheld to be constitutional in both the cases.
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2. UNREASONABLE RESTRICTIONS UNDER ARTICLE 19(1)(G)
Article 19(1)(g) guarantees the fundamental right to trade and
profession to every citizen of India. This right is not absolute, and is
subject to Article 19(6), which confers the power upon the state to impose
reasonable restrictions on the fundamental right, in the interest of the
general public. The appellant (mainly, the Qureshi community) argued
that an absolute ban on the slaughtering of cows is against their
fundamental rights guaranteed under Article 19(1)(g). One of the issues
that the court dealt was as to whether the state has the onus to prove
the constitutionality of the legislation, and that the restriction imposed
on a fundamental right is reasonable.
The presumption of constitutionality says that the presumption of the
court is in favour of the constitutionality of an enactment, and that the
burden is upon him who attacks it to show that there has been a clear
transgression of the constitutional principles.17 This is because it is
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.18
But, this aforesaid principle of presumption of constitutionality is
subject to an 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 be saved.19
In Abdul Hakim Qureshi v. State of Bihar,20 (also known as Qureshi-II),
the issue was with a restriction on the slaughter of bulls and bullocks.
Since absolute prohibition on the slaughter of cows was already upheld
in the case of Hanif Qureshi, they didn't delve into that issue. They
observed that if there is a law restricting the fundamental right under
Article 19(1)(g), then the onus is upon the state to prove its validity. The
Court, in Mohd. Faruk, rejected one of the contentions of the state that
17 Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538. 18 Id. 19 Union of India v. Elphinstone Spinning and Weaving Co. Ltd., AIR 2001 SC 724. 20 Abdul Hakim Qureshi v. State of Bihar, AIR 1961 SC 448.
INDIAN CONSTITUTIONAL LAW REVIEW
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discretion is vested upon the state to cancel the license of the
slaughterhouse, to which Court replied that it cannot be done at the
whims and fancies of the state, and has to be adjudged in the light of
fundamental rights of the person affected. But the Court, in Qureshi-IV,
despite the clear violation of the fundamental rights, erred in observing
that the onus is upon on the petitioners to prove that the legislation has
imposed unreasonable restrictions on his fundamental rights. This is in
clear violation of the doctrine of stare decisis in relation to the previous
precedents set by the Supreme Court.
Another issue that crops up while dealing with Article 19(1)(g) is
whether the reasonable restrictions prescribed under Article 19(6)
include absolute prohibition. The Court, in Narendra Kumar v. Union of
India,21 held that absolute prohibition can also be a reasonable
restriction. Then, the only thing that needs to be considered by the
legislation is “whether the lesser remedy would be inadequate”. They also
reiterated the guidelines for imposing reasonable restrictions laid down
in Pathumma v. State of Kerala.
The Court, in Mohd. Faruk, correctly applied these guidelines in the
facts and circumstances present before them, and held that the
impugned notification (imposing an absolute ban on the slaughtering of
bulls and bullocks) is not in the general interest of the public, but merely
to respect the sentiments of a particular section of society. But the
Court, in Qureshi-IV, despite citing Narendra Kumar, Qureshi-II and
Mohd. Faruk, failed to apply the test of reasonableness; instead, the
judgment seems contrary to all these tests. The restraint would be
reasonable and served a better purpose if the restriction had been only
till 16 years of age of all cattle (including a cow). When they are unable
to work either as milch or draught animals, they serve no purpose of
public interest until they are butchered and served as food. This way,
the business of the butchers could also have been saved and beef, as a
source of cheap protein, could be easily provided.
21 Narendra Kumar v. Union of India, [1960] 2 SCR 375.
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As per a report, India is the highest exporter of beef in the world,22 and
has a good share in the total meat exports. Banning it will adversely
affect the business of butchers and the economy. The Court, in this case
also, said that it is not a case of absolute prohibition, as the butchers
have other animals to slaughter. This is a flawed reasoning given by the
Court: just because there are other avenues available does not mean
that the restriction is not absolute and unreasonable.
The Supreme Court, in the case of Hinsa Virodhak Sangh v. Mirzapur
Moti Qureshi,23 while upholding the ban on meat for seven days,
observed that “had the ban on slaughterhouses been for a considerable
period of time, it would have been an excessive restriction on the
fundamental rights of butchers guaranteed under article 19(1)(g)”. This
is the first case in a range of cases on meat ban that mentions the right
to eat food of one's choice as a part of right to privacy, which is, in turn,
included under Article 21.
In Hanif Qureshi, the Court decided that cattle ceased to be useful after
a particular age, and cannot be used either as milch or draught animal.
The more pertinent judgment, however, is Qureshi-II, where the Court
held the restriction on the slaughter of bulls, bullocks and she-buffaloes
below the age of 20 or 25 years as unreasonable, and it was observed
that they became useless after the age of 16 years, and their
maintenance becomes a burden. In Haji Usmanbhai Qureshi v. State of
Gujarat (also known as Qureshi-III),24 the Supreme Court also observed
the same line of thought. But Mirzapur Kureshi took another large
deviation here and observed (on the basis of a dismal and biased report)
that cattle continue to be useful even after the age of 16.
It further observed that term public interest is of wide import and
includes public health, public order, public security and the economic
welfare of the community. On this basis, it was held by the Court that
22 Rishi Iyengar, India Stays World’s Top Beef Exporter Despite New Bans on
Slaughtering Cows, TIME, Apr. 24, 2015, http://time.com/3833931/india-beef-exports-
rise-ban-buffalo-meat/. 23 Hinsa Virodhak Sangh v. Mirzapur Moti Qureshi, AIR 2008 SC 1892. 24 Haji Usmanbhai Qureshi v. State of Gujarat, AIR 1986 SC 1213.
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the classification was based on intelligible differentia, and it upheld the
ban as reasonable and in the interest in the general public. There seems
to be a clear paradox in the reasoning of the Court, as they observed that
public interest includes the economic welfare of community, but didn’t
explain how putting a ban on the slaughtering of cattle and snatching
away the fundamental right of trade and profession of butchers (who
generally belongs to a particular community) is for their economic
welfare.
The Court, in Qureshi-IV, gave another absurd reasoning in observing
that animals other than bullocks are slaughtered in large numbers, and
therefore, the prohibition would not affect the adversely; hence, it is not
a case of absolute prohibition. As was rightly countered by the
dissenting opinion of A.K. Mathur, J., “slaughtering of these bulls and
bullocks beyond the age of 16 years constituted only 1.10% of the total
slaughtering that takes place in the State, then I fail to understand how
this legislation can advance the cause of the public at the expense of the
denial of Fundamental Right of this class of persons (butchers)”. The
Court has, therefore, acted on a majoritarian impulse and completely
disregarding the fundamental rights of the minorities.
The Court, in Mirzapur Kureshi placed reliance on the report of National
Commission on Cattle. Several of its recommendations are unreasonable
and prima facie unconvincing, and some of them are downright absurd.
The report alludes to right to food by claiming that the right to life is
protected by cheap and nutritious food, which can be provided by bovine
dung, remarking that “bovine dung is the most fundamental thing for
the fundamental right of a human being”. It is prima facie clear that the
connection drawn between bovine dung and right to food is vague and
injudicious. It even says that bullocks above the age of 16 years are fit
for ploughing, to which the Court agrees, but the Court does not find
this to be cruel. Ironically, in defending the restriction, the Court, in its
judgment, talked extensively about cruelty and the need for compassion
for living creatures. The report even recommended that the prohibition
on the slaughter of cattle should be included in our fundamental rights.
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Based on this baseless report, the Court rejected the argument given in
Qureshi-I that bulls and bullocks become useless to the public after the
age of 16 years. The Court also observed that even after 16 years of age,
bulls and bullocks are economical as it excretes dung, which is extremely
useful for production of manure. This is an invalid assumption that in
all conditions, useless cattle will be economical, and that the profits
accruing from its dung will exceed the cost of fodder and other
maintenance costs. In that case, should it not be left to the ordinary
prudence of a person to benefit by selling the dung or by selling the cattle
to a slaughterhouse? The Court needed to think from the perspective of
the persons maintaining the cattle. On the other hand, the Court, in
Hanif Qureshi, correctly held that the country is in short supply of milch
cattle, and that the maintenance of old cattle imposes an unnecessary
burden.
3. THE GHOST OF ‘STARE DECISIS’
While the court was saving the ban on the slaughtering of cattle by
giving preposterous reasons, the only impediment was the principle of
stare decisis, which was haunting the court like a ghost. The Court, in
order to get rid of it, observed that it would be inappropriate to follow
the principle of stare decisis, given the changes in facts and
circumstances dictated by forceful factors. The Court turned down the
diktat in Hanif Qureshi on several grounds (except on Article 14), as it
believed that the factual situation has altered. It was observed on the
basis of factual and legal components that Qureshi-I has lost much of its
significance, and therefore, there is a lot of material justifying the need
to change that opinion. The Court also used the observation made in
Kesavananda Bharati that fixed and universal principles cannot be laid
down, and will vary from case to case, having regard to the changing
conditions, the values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding circumstances,
all of which must enter into the judicial verdict. But the Court grossly
misunderstood the facts and circumstances, on the contrary, the court
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failed to appreciate the spirit of the Constitution and the changes in the
surrounding circumstances, as is evident from the judgment. The
modernist era requires us to look beyond status quo, and to contemplate
over the need of every section of the society. The decisions in Hanif
Qureshi, Qureshi-II, Qureshi-III, Hinsa Virodhak Sangh and Mohd.
Faruk cautioned against absolute prohibition, which the Court, in this
case, completely neglected and went ahead with its own reasoning,
instead.
If they are extrapolating that the principle of stare decisis is obsolete
and there is no need to cogently follow it, then is why the same not
considered in relation to the presumption in favour of legislation. The
Court relied extensively on the principle of presumption of
constitutionality, which a range of cases has subjected to the
fundamental rights. Also, a legislation cannot always be absolutely
trusted, given the fact that representatives are chosen out of a few and
have their own biases, and they themselves often act on majoritarian
impulses.
Also, the Court, in Mirzapur Kureshi, observed that Hanif Qureshi dealt
with social and economic conditions of Bihar and Uttar Pradesh, which
are dissimilar to that of Gujarat, and that has an immense difference.
This gave the Court leeway in applying the principle of stare decisis less
stringently. But the benefit of flexibility of stare decisis was not enjoyed
by the Bombay High Court in the Shaikh Zahid Mukhtar case, even
though they were dealing with a legislation concerning the social and
economic conditions of Maharashtra, which is vastly different from that
of Gujarat, as dealt with in Mirzapur Kureshi. Therefore, going by the
reasoning of Mirzapur Kureshi, their precedent should not be binding on
cases relating to the interpretation of similar legislations enacted in the
other states because of the difference in prevailing conditions and the
varying facts and circumstances. Nevertheless, there is a need to
reconsider the decision of Mirzapur Kureshi, as their problematic
reasoning will affect all subsequent decisions on this matter.
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4. RIGHT TO FOOD AND PRIVACY IMPLICIT UNDER ARTICLE 21
The Supreme Court, in Mirzapur Kureshi, virtually excluded the ambit
of Article 21. Unlike in the case of Shaikh Zahid Mukhtar, the Court, in
Mirzapur Kureshi, did not delve upon the ancillary issues like
possession and transportation. This gave the Bombay High Court (in
Shaikh Zahid Mukhtar) leeway in deciding the impugned provision
affecting the right to privacy and the right to food, which are both parts
of Article 21. The Court, in Hinsa Virodhak Sangh, has observed “[A]
large number of people are non-vegetarian and they cannot be compelled
to become vegetarian for a long period. What one eats is one’s personal
affair and it is a part of his right to privacy which is included in Article
21 of our Constitution as held by several decisions of this court”. The said
observation needs more elaboration than what was given in the case of
Shaikh Zahid Mukhtar, wherein the decision extended only to the issue
of possession of beef which is slaughtered outside state.
The ambit of the aforesaid fundamental rights should be given a wide
interpretation so as not to snatch away the right of food, especially of
the community which is in minority, as beef is one of their cheap sources
of protein and nutrients. In India, we already have a dearth of food and
millions of people belonging to the lower strata cannot afford one square
meal a day. So, in a country suffering from dire hunger problems, it is
highly imprudent to put up a ban on beef, which is largely consumed by
a marginalised section of the society, is enriched in nutrients and
proteins, and is very easy to procure.
IV. CONCLUSION
The contentious issue of beef ban presents various constitutional and
other fundamental questions. The paper has critically investigated the
ways in which the judiciary has outlawed the profession of butchers. The
judgment in the case of Mirzapur Kureshi is crammed with farcical
rationale for defending the constitutionality of a ban on the slaughter of
cows, bulls and bullocks. The paper argues that an absolute prohibition
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imposed on the business of a particular section of butchers is
unreasonable and thereby, unconstitutional.
Our Constitution follows the living tree doctrine, and Article 48 has to
be interpreted in that context. The harmonious construction of Article
48 and the right to profession will allow the slaughtering of cattle
beyond a particular age, i.e. 16 years, as decided in the case of Hanif
Qureshi. The judiciary has given lots of emphasis on Article 48A and
51A(g), but they are prima facie impertinent to the issue present herein.
On the other hand, the Bombay High Court has done a better job by
delving into Article 21 and recognizing the right to food as an integral
part of the right to privacy. However, the scope of Article 21 is kept
limited to the consumption of beef; but when slaughtering is prohibited,
there will be no availability of beef and consequently, it will infringe the
right to food.
The after-effects of an absolute ban on the slaughter of cattle in
Maharashtra has been adverse on the Qureshi community of butchers,
traders and leatherworkers.25 This has caused huge economic loss for
the butchers, and will become burdensome for the farmers, who will be
unable to replace the old livestock with the new.26 The beef ban promotes
certain religious practice, and in doing so, becomes inimical to secular
foundation of our democratic country27. The repercussion will be the
exclusion of certain marginalised communities, such as the traders and
consumers of cattle-derived products.28 The Indian legal system has
hereby failed to recognise the importance of the traditions of minority
groups, and enabled the snatching away of their right to food.29
25 Sagari R. Ramdas, The Beef Ban Effect: Stray Cattle, Broken Markets and Boom
Time for Buffaloes, The WIRE, Apr. 6, 2017, https://thewire.in/politics/beef-ban-cattle-
market. 26 Id. 27 Sarkar, supra note 3. 28 Id. 29 Bouayad, supra note 2.
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COURT’S JURISDICTION TO ENQUIRE INTO PROCEEDINGS
OF THE PARLIAMENT: A COMPARATIVE ANALYSIS
Akshita Mittal†
ABSTRACT
We have been witnessing a tussle between the
Legislature and the Judiciary since time
immemorial. One such area which is frequently
subject to such altercation is the Court’s jurisdiction
to enquire into parliamentary proceedings. The
constitutional provisions for parliamentary
privileges are vague. In these circumstances, the
Indian Courts have expounded upon the law of
parliamentary privileges, on various occasions, to
accord some concreteness to the issue. Additionally,
the underlying objective behind including such a
provision in the Constitution is to exclude the
jurisdiction of the Court with respect to internal
matters of the Parliament.
This system is based on the United Kingdom’s
system, where the Parliament is sovereign and
possess absolute power to regulate its own affairs. It
provides autonomy over all the matters which take
place within its four walls, with the exception of
crimes. The primary objective of this article is to
examine the scope of parliamentary privileges in
India, particularly in relation to the jurisdiction of
the courts. In this article, since we have adopted the
concept of the parliamentary system from the United
Kingdom—a common law nation, the author does a
comparative analysis between the parliamentary
model existing in the United Kingdom and the one in
India.
† 3rd year law student at Maharashtra National Law University, Nagpur. The author
may be reached at [email protected].
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I. POSITION IN THE UNITED KINGDOM
1. SUPREMACY OF PARLIAMENT
The cornerstone of the British legal system is the supremacy of
Parliament. The Parliament is conferred with absolute authority in the
United Kingdom, and therefore, the Courts do not possess much power
in their hands. The Parliament has the right to legislate a law on any
subject whatsoever, and no institution can override it. Even the Courts
cannot invalidate the law on the ground of incompetence of passing such
legislation, that is, they do not have the required authority to declare a
law void or unconstitutional.1
The United Kingdom does not have a written constitution, and
therefore, the power of the Parliament to legislate is legally
unrestricted. Hence, it can change even a constitutional principle by the
same ordinary process as it enacts an ordinary law. However, taking
into account the political aspect, Britain has a responsible government
with an elected House of Commons, which reflects the contemporary
public opinion, social morality, or consciousness; and for that reason, it
never takes any decision which has the probability to face a large
opposition.2
The United Kingdom has no doctrine of unconstitutionality of
parliamentary legislation, and so, a law enacted by Parliament cannot
be questioned or challenged in a court of law on any ground. The courts
have been assigned the task to interpret the law enacted by Parliament
and apply it to the factual situations given for adjudication. The courts
do not possess the power to scrutinise a law with reference to any
fundamental rule. However, in some situations, the Courts can take a
view which is contrary to the view expressed by the Parliament.3
The battle between the judiciary and the Parliament in United Kingdom
arose primarily because of the sovereignty of the Parliament and its
1 A.V. DICEY, THE LAW OF THE CONSTITUTION 27 (1st ed., J. W. F. Allison 2013). 2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 117 (8th ed. 2018). 3 Id, at 118.
INDIAN CONSTITUTIONAL LAW REVIEW
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established dominance over the judiciary. Consequently, the judiciary
had to struggle to make its own place. As a result, the British
constitutional history does not have strict applicability in India.
1.1. Parliamentary Privileges
Having established the supremacy of the Parliament, it is pertinent to
lay importance on some of the benefits enjoyed by the members of the
Parliament. They are provided with legal immunity known as
Parliamentary Privilege, which protects them from unnecessary suits.
Moreover, it also enables them to perform their functions in an efficient
and effective manner without unnecessary interference. These
privileges, among others, include freedom of speech, freedom from arrest
on civil matters, and most importantly, the power to control the
parliamentary proceedings.4 Such parliamentary privilege also provides
immunity from prosecution against defamation or breach of the Official
Secrets Act. It applies to speeches, questions or responses given during
parliamentary proceedings in the House of Lords and the House of
Commons. But it does not provide immunity in all instances, such as
against arrest for criminal offences or work done outside the floor of the
parliament.5
The concept of parliamentary privilege dates back to seventeenth
century. Earlier, this provision was a part of the Bill of Rights and was
passed by the Parliament in December 1689. The relevant portion is
stated as follows: 6
The freedom of speech and debates or proceedings in
Parliament ought not to be impeached or questioned in any
court or place out of Parliament.
4 Parliamentary Privileges, GLOSSARY, July 2018, https://www.parliament.uk/site-
information/glossary/parliamentary-privilege/. 5 Andy Bloxham, Parliamentary Privilege: A Guide, THE TELEGRAPH, July 2018,
https://www.telegraph.co.uk/news/newstopics/mpsexpenses/8122599/Parliamentary-
privilege-a-guide.html. 6 Parliamentary Privilege: Immunities and Powers of the House, NEW SOUTH WALES
LEGISLATIVE COUNCIL PRACTICE 50, 47 (Sept. 18, 2018).
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Parliamentary privilege in the United Kingdom can be classified broadly
into two categories that are freedom of speech, and exclusive cognisance
to control its own affairs.7 In the year of 1997 in United Kingdom, a Joint
Committee of both the houses, that is, the House of Lords and the House
of Commons, was called upon to review the parliamentary privileges and
make the required recommendations.8
1.2. Court’s Jurisdiction: The Judicial Path
Endorsing the supremacy of Parliament, in Stockdale v. Hansard,9 and
Lee v. Bude & Torrington Railway Co.,10 it was held that the Acts of
Parliament are the law of the land and Courts do not sit as Courts of
Appeal for the Parliament. Even Lord Campbell had said,
All that a court of justice can do is to look to the Parliament
rolls: if from that it should appear that a Bill has been
passed by both the House and received Royal Assent, no
court of Justice can inquire into the mode in which it was
introduced into Parliament…11
Even the case of the Sheriff of Middlesex12 proved this point further. In
this case, the sheriff was imprisoned for contempt under a warrant
issued by the Speaker. When he was brought before the Queen’s Bench
by the way of habeas corpus, the Judges held that they could not enquire
into the contempt proceeding. The courts have no power to disregard an
Act of Parliament, whether public or private, nor do they have any power
to examine the proceedings in the Parliament to determine whether an
Act has been obtained by irregularity or fraud. For example, that it was
not passed through the customary three readings in the House of
Commons,13 that the Bill was not assented to by a majority of members
7 JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE REPORT, 2013. 8 Orders of Reference, PARLIAMENTARY PRIVILEGE FIRST REPORT (July, 2018),
https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4301.htm. 9 Stockdale v. Hansard, 9 A&E 1. 10 Lee v. Bude & Torrington Railway Co., (1871) LR & CP 576. 11 Edinburgh Railway v. Wanchop, (1842) 8 Cl&F 710 (732) (HL). 12 Sheriff of Middlesex, 11 A&E. 13 Id, at 11.
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present and voting, or that it has been passed in disregard of the
Standing Orders of either House of Parliament,14 are all issues are
outside the jurisdiction of the courts. 15
However, the case of R. v. Graham Campbell16 established a peculiar
situation of immunity whereby the House of Commons possessed the
power to sanction breaches of any statute relating to any issue that took
place within the walls of the House.
The crux could be summarized by quoting Justice Stephen in the case of
Bradlaugh v. Gossett:17
The House of Commons is not a Court of Justice, but the
effect of its privilege to regulate its own internal concerns
practically invests it with a judicial character when it has
to apply to particular cases the provisions of Parliament…If
its determination is not in accordance with law, this
resembles the case of an error by a Judge whose decision is
not subject to appeal.
The recent holding is that Courts will not challenge or assault, by an
order of its own, an assertion of authority issued by Parliament,
pursuant to the Parliament’s own procedure.18 Therefore, the general
principle prevalent in United Kingdom was that the Parliament was
supreme, and hence, its acts were not questionable in a court of law.
II. POSITION IN INDIA
1. BACKGROUND
In India, the legislature and the judiciary share a special bond as one
makes the law, while the other interprets it. Both organs work in
14 Picklin v. British Railways Board, (1974) AC 765. 15 PHILLIPS, OWEN HOOD, JACKSON & PAUL, CONSTITUTIONAL AND ADMINISTRATIVE
LAW 46 (6th ed. 1978). 16 R. v. Graham Campbell, (1935) 1 KB 594. 17 Bradlaugh v. Gossett, (1884) 12 QBD 271. 18 Hamilton v. Al Fayed, (2001) AC 395.
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tandem with each other. The Parliament cannot be said to be supreme
in the sense that it overpowers the judiciary. Moreover, India has a
written Constitution which defines the boundaries of working for all
state instrumentalities. By virtue of Article 245(1), the legislative power
of the Parliament has been specifically made subject to the provisions of
the Constitution. Also, the Courts have the power to check the validity
of the laws made by the Parliament. There are procedures laid down in
the Constitution through which the constitutional courts may be invited
to scrutinise a legislation and ascertain if a constitutional provision has
been transgressed by the Parliament while enacting a law.19
The importance of the Parliament is not undermined by the
governmental structure of the country. It is the source of all central
legislations, and if a parliamentary legislation does not infringe any
constitutional limit, then the function of the courts is only to interpret
and apply the law. In that scenario, the courts cannot question the policy
or wisdom of legislation. Also, the courts cannot declare a statute
unconstitutional simply on the ground of harsh provisions or of being
passed in a mala fide manner; even if a law is struck down by the courts
as being invalid for an infirmity, the Parliament can cure the same by
passing another law by removing the infirmity in question (as generally,
a law cannot overrule a court decision).20 The doctrine of parliamentary
sovereignty, as prevalent in the United Kingdom, does not hold true in
India, except to the extent and in the fields provided by the Constitution.
There are separate provisions which deal with parliamentary privileges
and the courts’ jurisdiction to inquire into parliamentary proceedings.
Both notions have been given their due importance by getting a
sufficient mention in the Constitution of India.
1.1. Concept of Parliamentary Privileges
Sir Thomas Erskine May has defined the expression parliamentary
privileges as:
19 Jain, supra note 2, at 119. 20 Id.
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The sum of the peculiar rights enjoyed by each house
collectively is a constituent part of the High Court of
Parliament, and by members of each house of parliament
individually, without which they cannot discharge their
functions, and which exceed those possessed by other bodies
or individuals.21
Article 105 and Article 194 of the Constitution of India state the
privileges and immunities of the Parliament and its members, and of
the state legislatures and their members, respectively. These provisions
of the Constitution do not exhaustively enumerate the privileges of
Indian parliamentarians as clause 3 of both these articles refers directly
to the privilege of the House of Commons at the commencement of the
Constitution. Thus, it basically deals with all those privileges that
existed in the House of Commons as of 26 January, 1950.22 The present
position in the law of parliamentary privileges in India was enunciated
in the case of Raja Ram Pal v. Speaker, Lok Sabha.23
2. HISTORY OF ARTICLE 122 OF CONSTITUTION OF INDIA
Originally a similar provision, prohibiting court intervention into
parliamentary proceedings, was part of Section 41 of the Government of
India Act. It barred the validity of any proceeding in Federal Parliament
from being called in question on the ground of any alleged irregularity
of procedure. Additionally, it also gave protection to the officers or other
members of the Federal Parliament, in whom the powers were vested
for the regulation of procedure or maintenance of proper order, in the
conduct of business against court intervention with regard to exercise of
those powers.24
21 Parliamentary Privileges, Sept. 10, 2018,
https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER—8.pdf. 22 Jain, supra note 2, at 89. 23 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184. 24 VIII DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 9045 (9th ed.
2017).
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The First Draft Constitution prepared by the Constitutional Advisor in
October 1947 had fully reproduced the provision in its letter and spirit
as Clause 85. The Drafting Committee had decided to include and adopt
the provision as Article 101 of the Draft Constitution on 21 February,
1948. Thereafter, deliberations and discussions took place over the
provision at length on 23 May, 1949.25
2.1. Constituent Assembly Debate
There were primarily two issues which had formed the subject matter of
discussion in the Constituent Assembly Debate in 1949. One was raised
by Mr. H.V. Kamath and the other was raised by Mr. Naziruddin Ahmad
– both members of the Constituent Assembly.26
The first concern was a suggestion by voicing out an amendment to
insert the words ‘in any court’ at the end of Clause 1 to make the existing
text clearer. But Ambedkar was not convinced, and instead, said that it
was not necessary because proceedings of the Parliament cannot be
questioned at any place but a court of law. Therefore, this proposition
was rejected.27
The second concern was to substitute the words ‘or other member’ with
‘and no member’ in clause 2 of the provision. It was raised because Mr.
Ahmad wanted to distinguish between an officer and a member of the
House. This suggestion was also rejected as it was concluded that the
Speaker and the Deputy Speaker are officers as well as members of the
Parliament, in whom powers are already vested by the Constitution;
thus, the other members need to be protected specifically.
Hence, both the proposals of amendment were outlawed, and after all
the due deliberations, the Assembly adopted the specific provision and
added it to the Constitution. At the revision stage, the provision was
renumbered as Article 122 of the Constitution of India.
25 Constituent Assembly Debates (Proceedings) – VIII, CONSTITUENT ASSEMBLY
Debates, 199-201, May 23, 1949,
https://cadindia.clpr.org.in/constitution_assembly_debates/volume/8/1949-05-23. 26 Id. 27 Id.
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3. JUDICIAL INTERPRETATION
In the much-celebrated case of M.S.M. Sharma v. Shree Krishna
Sinha,28 commonly known as the Searchlight Case, it was laid down that
any investigation outside the Parliament, in respect of anything said or
done by members during the discharge of their parliamentary duties,
would amount to a serious interference with their rights. Even though a
speech delivered by a member in the House may be held as contempt of
court, by virtue of Article 122, no action can be taken against him in any
court; the court, being an outside authority, does not possess the
requisite power to probe the matter. Hence, the position was clear—no
court can examine the questions which come within the ambit of special
jurisdiction of the legislature, as it has the power to conduct its own
affairs. It also observed that:
Once it has been held that the Legislature has the
jurisdiction to control the publication of its proceedings and
to go into the question whether there has been any breach of
its privileges, the Legislature is vested with complete
jurisdiction to carry on its proceedings in accordance with
its rules of business. Even though it may not have strictly
complied with the requirements of the procedural law laid
down for conducting its business, that cannot be a ground
for interference by this Court under Art. 32 of the
Constitution. Courts have always recognised the basic
difference between complete want of jurisdiction and
improper or irregular exercise of jurisdiction. Mere non-
compliance with rules of procedure cannot be a ground for
issuing a writ under Art. 32 of the Constitution.29
In the case of Indira Nehru Gandhi v. Raj Narain,30 it was held that
the validity of the proceedings of the two Houses of Parliament are
non-justiciable matters, as they relate to the internal domain of two
28 M.S.M. Sharma v. Shree Krishna Sinha, AIR 1960 SC 1186. 29 Id. 30 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
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Houses. But the Court can examine whether the measures passed by
the Parliament are constitutionally valid or not. At the same time,
the validity of the proceedings cannot be challenged on the grounds
that some members were prevented from attending and participating
in the discussions.
3.1. Speaker of the House
Also, it has been laid down that the courts should not interfere with
matters which pertain to enquiry by and satisfaction of the Speaker. In
a scenario of resignation being submitted and forwarded to the Speaker
of Lok Sabha, it is not the business of the courts to intrude into the
discretion of the Speaker.31 Furthermore, the validity of the Speaker’s
decision, concerning the adjournment of the House sine die, and later
resuming the sittings, cannot be inquired into on the grounds of
irregularity.32
Moreover, the courts are not permitted to issue a writ prohibiting the
Speaker from presiding over sittings of the House. No writ can lie to stop
the passage of a Bill in the Parliament.33 It is for the Speaker of the
House to allow or disallow a resolution to be raised or discussed in the
House. The courts cannot, at this stage, seek to regulate the procedure
of the House and arrogate to itself the powers of the Speaker. Even
where a law has been promulgated, it is not the duty of the courts to act
in supervisory character and rectify the defects suo motu.34 But the
Speaker’s ruling on the validity of an Ordinance cannot be regarded as
final and binding. A Speaker cannot act contrary to the law and
constitutional injunctions.35
Basically, until a Bill becomes a law, the legislative power not being
complete, the courts cannot examine it. Neither a court nor a judge has
the power to directly declare any law void or annul the same
31 Panna Lal Agyan v. Hon’ble Speaker, Sri Balram Jhagad, AIR (1988) All 167. 32 Basu, supra note 24, at 9052. 33 Chotey Lal v. State of U.P., AIR 1951 All 228. 34 Hem Chandra Sen Gupta v. Speaker of Legislative Assembly, West Bengal, AIR
1956 Cal 378. 35 State of Punjab v. Sat Pal Dang, AIR 1969 SC 903.
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immediately after its promulgation. It is allowed to do so only when an
interpretation is sought by any person who challenges the vires of the
law on the basis of infringement of rights, or claiming it to be ultra vires
of the powers of the legislative body.36 However, it can be examined
whether proceedings conducted under Article 105(3) and Article 194(3)
are tainted on account of substantive or gross illegality or
unconstitutionality.37
3.2. Procedure
Another important aspect to be considered is that Article 122 or Article
212 specifically relate to irregularities regarding procedure. Where
there are no irregularities of procedure with respect to a resolution of
the Parliament being challenged, Article 122 cannot be called into
question.
In Raja Ram Pal’s case,38 it was reasserted that,
Art. 212(1) seems to make it possible for a citizen to call in
question in the appropriate court of law the validity of any
proceedings inside the legislative chamber if his case is that
the said proceedings suffer not from mere irregularity of
procedure, but from an illegality. If the impugned procedure
is illegal and unconstitutional, it would be open to be
scrutinised in a court of law, though such scrutiny is
prohibited if the complaint against the procedure is no more
than this that the procedure was irregular.39
Irregularity of procedure refers only to irregularity in the observation of
the rules of procedure and conduct of business specified in Article 118 of
the Constitution, and not the provisions of the Constitution defining
legislative competence. Therefore, it can be said that parliamentary
36 C. Shrikishen v. State of Andhra Pradesh, AIR 1956 Hyd 186. 37 Amarinder Singh v. Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113. 38 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184. 39 Keshav Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745.
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proceedings are subject to judicial review if it is contested on illegality
and not irregularity.
3.3. Anti-Defection Law
The Tenth Schedule to the Constitution provides that all proceedings in
relation to disqualification of a member of a House would be deemed to
be proceedings in the Parliament within the meaning of Article 122 or
proceedings in the legislature of a State within the meaning of Article
212, notwithstanding anything else contained in the Constitution;
therefore, no court will have any jurisdiction in respect of any matter
connected with the disqualification of a member of a House.40
By the virtue of paragraph 6(1) of the Tenth Schedule, an adjudicatory
power was being vested in the Speaker of the House. This was added to
the Constitution through the 52nd Amendment Act, 1985 and the proviso
to that paragraph made the decision of the Speaker final. Also,
paragraph 7 bars the jurisdiction of the Courts to entertain any matter
related to disqualification of a member on the ground of defection.
However, a Constitution bench of the Hon’ble Supreme Court, in the
case of Kihoto Han v. Zachilhu,41 held that notwithstanding the finality
clause and bar of jurisdiction, the decision of the Speaker shall be open
to review of the Supreme Court under Article 136, or the review of the
concerned High Court under Article 226 of the Constitution. It held that:
…even after 1986 when the Tenth Schedule was introduced,
the Constitution did not evince any intention to
invoke Article 122 or 212 in the conduct of resolution of
disputes as to the disqualification of members under
Articles 191(1) and 102(1). The very deeming provision
implies that the proceedings of disqualification are, in fact,
not before the House; but only before the Speaker as a
specially designated authority. The decision under
paragraph 6(1) is not the decision of the House, nor is it
40 2 SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA 1098 (2nd ed. 2015). 41 Kihoto Han v. Zachilhu, AIR 1993 SC 412.
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subject to the approval by the House. The decision operates
independently of the House. A deeming provision cannot by
its creation transcend its own power. There is, therefore, no
immunity under Articles 122 and 212 from judicial scrutiny
of the decision of the Speaker or Chairman exercising power
under Paragraph 6(1) of the Tenth Schedule.
Recently, the same principle was echoed again:42 that the Speaker,
while exercising the powers under the Tenth Schedule, acts in a quasi-
judicial authority, adjudicating rights and obligations, instead of just
being a Speaker or an official of the House.43
3.4. Recent Illustrations
There are many political scenarios relating to elections where the
question concerning the conflict between the legislature and the
judiciary has arisen. The significant ones are mentioned herein. The
most illustrious of all, the Jharkhand Mukti Morcha case, in which some
members of the Parliament had taken bribes to vote against a no-
confidence motion. Unfortunately, the Hon’ble Supreme Court could not
have held them liable because they took the protection of Article
105(2).44 In 2015, in the state of Arunachal Pradesh, the Governor was
not permitted to conduct the Legislative Assembly on his own fanciful
terms and conditions: the Court held that using discretionary powers to
summon or dissolve Assembly sessions without the aid and advice of the
Chief Minister and his Cabinet is plainly unconstitutional.45 Further, in
Uttarakhand, the Apex Court had told the Central Government that the
42 Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305. 43 Basu, supra note 24, at 9059. 44 Fali S. Nariman, Jharkhand Mukti Morcha bribery scandal: In 1993, corruption
got institutionalised in India, INDIA TODAY, Dec. 26, 2005 (Sept. 2018),
https://www.indiatoday.in/magazine/cover-story/story/20051226-jharkhand-mukti-
morcha-bribery-scandal-in-1993-corruption-got-institutionalised-in-india-786386-
2005-12-26. 45 Krishnadas Rajagopal, SC Quashes Arunachal Governor's Order, Restores Tuki
Govt. to Power, THE HINDU (Sept. 2018),
https://www.thehindu.com/news/national/SC-quashes-Arunachal-Governors-order-
restores-Tuki-govt.-to-power/article14486816.ece.
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Court possessed the necessary power to allow the ousted Chief
Minister’s petition challenging the imposition of President’s Rule, and
to ensure that a floor test is held.46
Most recent of all, in 2018, in the state of Karnataka, a three-judge
bench of the Hon’ble Supreme Court ordered a floor test on immediate
basis, cutting down the window of fifteen days granted by the governor
to an influential political party candidate for the position of Chief
Minister, to gain confidence in the respective state legislative
assembly.47 In another case from the same state, a division bench had
observed that it has power to request the Speaker to dispose of the
disqualification petitions at the earliest in the interest of justice and to
maintain dignity of the office of the Speaker of the Legislative
Assembly.48 It held that merely reminding the Speaker to discharge his
obligation to consider and take a decision on the petition filed for
disqualification does not amount to judicial review.49
Delving into anti-defection law, the other states have also raised their
concern over judicial scrutiny. Therefore, time and again the occasion
arises to determine whether the judiciary can intervene in
parliamentary proceedings.
III. COMPARATIVE ANALYSIS
The general principles of United Kingdom have not been accepted in
India in their entirety. Though India has borrowed the parliamentary
46 B.S. Web Team, Uttarakhand HC Quashes President's Rule: 10 Things to Know,
THE BUSINESS STANDARD (Sept. 2018), https://www.business-
standard.com/article/current-affairs/uttarakhand-hc-quashes-president-s-rule-10-
things-to-know-116042100880_1.html. 47 Supreme Court Orders Floor Test in Karnataka Assembly on Saturday, THE TIMES
OF INDIA (Sept. 2018), https://timesofindia.indiatimes.com/india/supreme-court-
proposes-floor-test-in-karnataka-assembly-on-saturday/articleshow/64217207.cms. 48 Ashok K.M., Reminding Speaker to Decide On Disqualification Petition Doesn’t
Amount To Judicial Review: Karnataka HC, LIVE LAW (Sept. 2018),
https://www.livelaw.in/reminding-speaker-to-decide-on-disqualification-petition-
doesnt-amount-to-judicial-review-karnataka-hc-read-judgment/. 49 Zameer Ahmed Khan v. State of Karnataka, WRIT APPEAL No. 1319/2018.
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form of government from Britain, there are still a few differences in the
governments’ powers and limitations. The most fundamental difference
is that the power of the British Parliament is unrestrained or
unfettered, whereas the power of Indian Parliament is controlled, to an
extent, by the Constitution – primarily because of the presence of a
written Constitution in India. The Indian Parliament has to function
within the constraints of the Constitution, from which its legislative
powers emanate. The British Parliament can legislate upon any subject,
as opposed to the Indian Parliament, which can legislate only upon
matters mentioned in the Union List or the Concurrent List (or
residuary matters), as specified in Article 246 of the Constitution of
India.
While bringing in a contrast between British Parliament and Indian
Parliament, Dicey had called the former sovereign, and the latter
subordinate or non-sovereign. In the absence of a written constitution to
guide the courts in identifying an Act of Parliament, even the definition
of an Act of Parliament is primarily a matter of common law in the
United Kingdom.50
After analysing the situation in the United Kingdom and in India, it has
been witnessed that there is a similar provision warranting
parliamentary privileges, but in India, there is a special provision which
relates specifically to the courts’ jurisdiction to enquire into
parliamentary proceedings.
Another contentious point is whether the courts can intervene in the
functioning of the Speaker to administer oath to a member on the
grounds that he has wrongfully refused to administer oath to a member.
In the United Kingdom, it was observed that they have answered in
negative by the reasoning that taking or administering oath to a
member is part and parcel of the internal proceedings of the House.51
50 Basu, supra note 24, at 9043. 51 Anand v. Ram Sahay, AIR 1952 MB 31, at 44.
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On the other hand, in India, it is considered a condition precedent to the
business.52
In the United States, the scenario is not clear.53 Generally, the Journals
of the Houses cannot be referred to invalidate an Act of Congress on the
ground of defect in procedure. But the Courts can interfere where some
express constitutional provision has been violated. For example, when a
revenue matter has been decided without taking the House of
Representative into confidence,54 or when a bill has been passed without
special majority, as required by the Constitution.55
In Pakistan, Article 69 of the Constitution mentions the same principle.
Justice Fazal Karim, while commenting on the same, said that along
with the ground of unconstitutionality and illegality, any material
irregularity also forms the subject matter of judicial review.56
In the case of Raja Ram Pal,57 the legal position in other countries was
also discussed. In Australia, the provisions relating to parliamentary
privileges under their Constitution are similar to the Constitution of
India. They rely on House of Commons, being a Commonwealth country.
Considering the position in Canada, it was laid down that,
Judiciary exercised the power particularly when issues
involved the rights of third party. According to Courts, their
role was to interpret the law of Parliament and to apply it.
Holding the test of ‘necessity’ for privilege as ‘jurisdictional
test’, the learned Judge stated; “The test of necessity is not
applied as a standard for judging the content of a claimed
privilege, but for the purpose of determining the necessary
sphere of exclusive or absolute ‘parliamentary’ or
‘legislative’ jurisdiction. If a matter falls within this
52 Cf. Ram Dubey v. Govt. of M.B., AIR 1952 MB 57, at 74. 53 Basu, supra note 24, at 9044. 54 Hubbard v. Lawe, (1916) 226 Neb 135. 55 U.S. v. Smith, (1932) 286 US 6. 56 JUSTICE (R) FAZAL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION 203 (Pakistan Law
House 2006); Basu, supra note 24, at 9059. 57 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184.
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necessary sphere of matters without which the dignity and
efficiency of the House cannot be upheld, courts will not
inquire into questions concerning such privilege. All such
questions will instead fall to the exclusive jurisdiction of the
legislative body.58
IV. CONCLUSION
The issue of parliamentary privileges places the judiciary and the
legislature at loggerheads. On one hand, the Parliament claims absolute
sovereignty in the matter of its privileges. On the other hand, the
judiciary, as the custodian of the Constitution, does not admit any
restraint on its power of judicial review. The judiciary admits to the fact
that the Parliament is immune from its jurisdiction with regard to its
internal matters, which itself is one of the necessary privileges of the
Parliament. Though the Court has accepted this position in theory, in
practice, on various occasions, the judiciary has extended its
adjudicatory powers to the privileges of the Parliament and the State
Legislatures. The basic objective of the constitutional scheme was to
ensure that each of the Constitutional organs function within their
respective assigned sphere. A careful analysis of Article 122 highlights
the basic principle that each House is the master of its procedure and
conduct of business, and thus, it can make rules on its own for regulating
procedure. No outside authority can interfere with its working. A court
cannot restrain proceedings in a sovereign legislature by the way of
injunction but can do so only on the grounds of unconstitutionality. The
solution to this conflict lies in harmonising the relationship between the
two highest organs of the democracy, and proper codifying of the
privileges to remove vague interpretations.
58 Id.
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EVOLUTION OF THE PRESIDENT’S DISCRETIONARY
POWERS AND HIS ROLE OF A NOMINAL HEAD
Varisha Sharma†
ABSTRACT
The Parliamentary form of democracy in India has
many pillars which eases the functioning of the
system. However, the position and the powers of the
President have been the major issues of contention
since the inception of the Constitution of India. The
central topic of this discussion is the discretionary
powers of the President in India. The paper will be
tracing the constitutional change in the nature of
the President’s discretionary powers by the way of
provisions, practice, judicial interpretation and
political context.
The paper primarily aims to argue that the post of
President was aimed to be a nominal one but has
acquired an active role with more space to exercise
his jurisdiction with the changing political and
constitutional set up. In order to understand and
contextualise this, it is pertinent to view the
President’s position and the essence of making him
a titular head. The landmark changes were brought
about by the 44th Amendment of the Constitution,
and in furtherance, there have been changes in the
party politics from single party dominance to
multiparty system, and a lack of clear majority has
empowered the President in an implicit manner.
† 5th year law student at O.P. Jindal Global University, Sonepat. The author may be
reached at [email protected].
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I. INTERPLAY OF PARLIAMENTARY FORM OF
DEMOCRACY, PRESIDENT AND THE CONSTITUTIONAL
ASSEMBLY DEBATES
The installation of the parliamentary form of democracy in the country
was aimed at giving the Prime Minister the real powers as he would be
the Head of the Government, with the decision-making agency lying
with the Parliament. The essence of this installation can be understood
by looking at some of the Constituent Assembly discussions. It is
important to deduce the spirit as the explicit provisions of the
Constitution of India do not give many stated indications with respect
to the President’s discretionary powers. As stated by Nehru: “Power
really resided in the Ministry and in the Legislature and not in the
President. At the same time, we did not want to make the President just
a mere figurehead like the French President. We did not give him any
real power, but we made his position of authority and dignity.”1
Ambedkar also reiterated the same stance by stating: “He has no
discretion and no powers of administration and he occupies the same
position as that of King under the English Constitution.”2
The aforementioned words of both the leaders are indicative of the fact
that the role of the President, as envisaged by the Constitution makers,
was not that of an activist President, but a passive one acting on the aid
and advice of the Council of Ministers, as provided in Article 74 of the
Constitution. The question then arises whether the intention of making
President the titular head was only contextual, and the lack of any
explicit provisions in terms of his exercise of discretion or otherwise was
an attempt to allow the circumstances to determine his or her authority.
1 Constituent Assembly Debates (Proceedings) – VII, CONSTITUENT ASSEMBLY
DEBATES 337; Constituent Assembly Debates (Proceedings) – IV, CONSTITUENT
ASSEMBLY DEBATES 12, 909. 2 Constituent Assembly Debates (Proceedings) – VII, CONSTITUENT ASSEMBLY
DEBATES 1036, 724.
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Irrespective of the intent, the fact remains that President’s position has
undergone a drastic change since the installation of the parliamentary
form of democracy, and moved away from the originally envisioned role.
II. PRE 1976 PERIOD- 42ND AMENDMENT, JUDICIAL
DECISIONS, MARGINAL DISCRETIONARY POWERS
The President was supposed to act on the aid and advice of the Council
of Ministers, according to Article 743 of the Constitution. He was not
expected to use his individual judgment. The Parliament had the sole
authority to take decisions on policy matters. However, it was known
that there will be circumstances where the President will need to
exercise some discretion. In the view of the abovementioned fact, he was
provided with marginal discretionary powers. These included the right
to summon the House, to invite a new leader to prove majority in the
event of the existing Government losing majority. However, none of
these powers really provided the President with any active authority.4
The entire objective would have been defeated as the President would
have exercised parallel powers by taking decisions contrary to the
Parliament, giving rise to a situation of constitutional crisis.
The pre-existing stand regarding the position of the President was only
reaffirmed by the 42nd Constitutional Amendment.5 There wasn’t any
substantial change in the position by the virtue of this amendment.
Hence, any further elaboration on this aspect has been avoided for the
sake of brevity.
The judiciary has also upheld the same view, which is clearly visible in
its judgments. It was held in Bijoya Cottonmills v. State of West Bengal6
that, under Article 53, the decisions are taken in the name of the
President, but he cannot exercise the powers personally – only at the
3 Constitution of India, 1950 4 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7th ed, Lexis Nexis 2014). 5 Id. 6 Bijoya Cottonmills v. State of West Bengal, 1967 SCR (2) 406.
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direction of the Council of Ministers. Personal satisfaction of the
President is not needed in every case.
In this phase, we clearly see that the role of the President was nominal.
Every institution or stakeholder tried to literally stick to the fact that
the President must not exercise discretion, which would make him
active in nature. This was contrary to the structural constitutionalism
approach, which aims to see the Constitution in its entirety.7
However, this approach was more inclined towards keeping the essence
of Article 74 alive, along with the elements of parliamentary democracy,
rather than expressing the ideals of the living Constitution. One of the
instances which indicate the ignorance in giving effect to Constitution is
that Article 60 provides for oath to be taken by the President, which
states that, “He will to the best of his ability, preserve, protect and defend
the constitution.” In the wake of ensuring his titular position, there was
no consideration of a situation where party politics might lead to
constitutional crisis, and the need for an activist President may arise.
III. INSTANCES DENOTING THE NEED TO HAVE MORE DISCRETION
During the installation of the President, it was expected that the
President would act on the lines of the British monarch, that is, as the
Constitutional Head. There was a conflict between Rajendra Prasad (the
first President of India) and Jawaharlal Nehru (the first Prime Minister
of India), as the former wanted to act on his own accord while rejecting
or accepting Bills. However, Nehru and the other important luminaries
pointed out that the Constitution provides for the President to act on the
aid and advice of Council of Ministers. This entire incident gave the
President a dual identity of being both the voice of the government and
the head of constitutional propriety. However, he ignited the debate as
to whether, with changing circumstances, it was more important to stick
7 JEFFREY GOLDSWORTHY, INTERPRETING CONSTITUTIONS (1st ed., Oxford University
Press 2008).
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to the basic structure of the Constitution or give effect to a more
presidential form of government.8
The political scenario has undergone a peculiar evolution. The one-party
Congress dominance post-independence gave a freeway to the Central
Government, with little or no space for the practice of any presidential
discretion. The Congress often misused the provisions of the President’s
Rule to derail a non-Congress regional government. The diversity of this
nation was not ready to be engulfed into a one-dimensional and single
party dominance. With various other parties with diverging ideologies
coming to the fore, the politics of the country changed for good after
1967, when there were multiple parties at state level, and even the
Central Government comprised many parties.9
This marked the beginning of the era of the coalition governance, which
empowered the President to act as the mediator when conflicts arose
between the numerous and chaotic players in the political game. The
role of being a constitutional guardian had become more important and
relevant as there were increased chances of constitutional violation for
furthering one party’s agenda.
There were three situations faced by various Presidents, which were not
covered by any explicit directions within the Constitution, thereby
allowing them to use their own individual judgement. This was a
turning point, in the sense that, for the first time, the activist role which
was so highly opposed, was becoming a reality, owing to the changing
political circumstances.
President Venkatarama and President Sharma faced hung Parliaments.
The former laid down the precedent of approaching the largest party to
form the Government, and then to prove confidence in the Parliament
within 30 days. President Sharma stuck to the same, but was impartial
and asked the Governors to see the provisions before declaring
emergency in the states. President Narayan changed this precedent as
8 ATUL KOHLI, THE SUCCESS OF INDIA'S DEMOCRACY (1st ed., Princeton University
Press 2001). 9 MAHENDRA PAL SINGH, V.N. SHUKLA'S CONSTITUTION OF INDIA.
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he was caught in the controversy of having a pre-poll alliance consisting
of 22 parties with the largest majority, and a single party with second
largest majority. Hence, who was he to invite for forming the
Government, especially since there was no precedent set for the same?10
The so-called marginalized discretion was no more marginal in nature,
as the political circumstances needed the President to use more
discretion.
IV. DISCRETIONARY POWERS IN THE STATUS QUO AND THE 44TH
AMENDMENT
The 42nd Amendment passed in the wake of the Emergency further
restricted the authority of the President, which made him succumb to
the pressures of the Government.11 However, the 44th Amendment
brought about a change which is known as the Pocket Veto. The
amendment added a new proviso to Article 74(1) of the Constitution,
which allowed the President to ask the Council to reconsider a Bill. It
further added to Article 74(2) of the Constitution that the President
cannot be questioned in any court of law for the furtherance of any such
advice. This, however, did not apply to Money Bills.12
The right to send a Bill for reconsideration is a very empowering right,
in the sense that a Bill being sent for re-evaluation by a dignified figure
such as the President makes it a highly influential power. For instance,
the Gujral Government recommended the imposition of President’s Rule
in Uttar Pradesh in 1997, but the President sent it back because the UP
government had just won the vote of confidence. This matter was not
pursued further.13
10 Kohli, supra note 8. 11 Jain, supra note 4. 12 S. Dam, Executive, in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 307–
329 (S. Choudhry, M. Khosla & P.B. Mehta eds., Oxford University Press, New Delhi
2016). 13 Jain, supra note 4.
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The fact that the decision was sent back for reconsideration by a neutral
political figure goes on to show the hidden political motive which was
aimed to be achieved in the garb of the President’s Rule. Hence, even
though it is legally not binding, but morally and as a matter of policy, it
gives an essential power to the President to put forth his opinion.
The other discretionary powers that the President has in the status quo
are as follows:
a. Suspensive Veto
After the 44th amendment, the President has the right to delay a Bill
being passed by sending it for reconsideration. This power not only
delays the Bill, but also proves to be a big ethical hurdle. The
President is the most the neutral person in the political scheme of
the country, and his intervention testifies to the loopholes or the
vendetta behind the Bill. It exposes the Government and its
intentions. People have an opportunity to question the Bill as well as
the actions of the Parliament. Hence, it can be said that even though
it’s not a legally binding power has a major moral backing.
b. Pocket Veto
It is a very important implicit power in the hands of the President.
It helps the President keep a Bill pending by neither forwarding it
for reconsideration, nor ratifying nor rejecting it. It is nowhere
mentioned in the provisions, but the lack of specification regarding
the time period for sending the Bill back for reconsideration allows
the President to keep it pending for an indefinite period.14
This power could stultify the entire process of passing a Bill, against
the wishes of the Parliament. If we refer back to the Constituent
Assembly debates, it was gathered that an activist President, who
has been indirectly elected, should not have any powers to counter
14 U.C. JAIN & J. NAIR, POWERS OF PRESIDENT AND CABINET (Pointer Publishers,
Jaipur 2000).
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the Parliament’s decision. However, the pocket veto is a clear
deviation from this vision.
c. Right to Seek Information from the Prime Minister
The President has the right to seek any information from the Prime
Minister regarding the administration or the affairs of the country
and any proposed legislations under Article 78(a) and (b). the
President has full discretion in exercising this provision, without any
external interference. He cannot be denied this right. It relates back
to the point that Nehru mentioned during the Constituent Assembly
debates – that the position of the President is of dignity. He is clearly
an important figure who has to be informed of all the happenings of
such nature in the country.
d. Power to Summon the House
Under Article 85 of the Constitution, the President can summon the
House to meet at any specified time and place to make sure that six
months do not elapse since last sitting of the House.15 This has been
a discretionary power that the President has always possessed in
order to maintain the legitimate procedure under the Constitution.
e. Power to Invite a Leader for forming Government, if No Clear
Majority
He has the power to invite a leader from any party or coalition to
form the Government, if there is no clear majority. The said
candidate must then prove majority and confidence in the
Parliament within a specified period of time.16
Hence, the provision is of no utility if there is clear majority. But, in
the case of the coalition politics, which is the ground reality, this
power makes the President a very important player in the entire
15 Singh, supra note 9. 16 A.G, NOORANI CONSTITUTIONAL QUESTIONS IN INDIA: THE PRESIDENT, PARLIAMENT
AND THE STATES (Oxford University Press, New Delhi 2000).
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scheme of governance. Political circumstances can, therefore,
empower him to appoint a leader he thinks fit, who would then be
taking all the important decisions, once he clears the floor test.
f. Power to Declare No Confidence Motion
The House can be dissolved if the Council of Ministers loses majority.
The President would not be bound by the advice of the Council if they
have lost majority. The leverage to the President even in this case is
situational, because if the Council of Ministers lose the majority
because of their own conduct, then it is easier to exercise this right.
g. Increase in Powers in case of a Caretaker Government
A caretaker government is not a constitutional term, but it is used to
refer to the government appointed in case of the elected party cannot
form a government, or loses confidence, and fresh elections are still
to take place.17 This Government takes care of the day-to-day affairs
of the country. The idea is that it should not possess the powers of
taking important policy decisions, other than in case of exceptional
situations. This allows the President to become the guardian of the
entire government and its conduct. For example, the Vajpayee
Government in 1997 was a caretaker government, and had to throw
out Kargil intruders because it was an urgent decision, which could
not have been left pending till fresh elections took place.
In the case of Rameshwar Prasad v. Union of India,18 the Supreme
Court affirmed that the satisfaction of the President is important for
the dissolution of the legislative assembly. The dissolution was set
aside because the President was wrongly advised by the Council of
ministers. Hence, the judiciary also holds the view that the President
is required to use his own rationality, and is not supposed to act on
any advice of Council of Ministers.
17 Kohli, supra note 8. 18 Rameshwar Prasad v Union of India, (2006) 2 SCC 1.
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V. EVOLVED DISCRETIONARY POWERS: MOVE TOWARDS
HYBRIDITY?
The changing trend can clearly be traced from the initial passivism
towards giving the President discretionary powers to allotting much
more space for discretion and activism in the status quo. We have come
a long way in ensuring that our constitutional fabric is protected even
in the times of political crises, by empowering the President to take calls
in such situations.
However, the reformed discretionary powers are away from elements of
parliamentary form of democracy, which advocates making the central
executive merely a nominal head. But it is noteworthy that it’s not a
major enough deviation as giving the President absolute or independent
powers on the lines of presidential powers. It can, however, be argued
that a political system where the President no more remains a nominal
head, but becomes an activist President is a sort of hybrid of the aspects
of parliamentary and presidential form of governance, which is
dominated by the parliamentary system. The fact still remains that this
change has not been actualised on paper, but is merely contextual,
resulting from the nature of politics in the country. It is not static, and
will keep changing as the political scenario of the nation keeps evolving
and showing various forms.
VI. CONLUSION AND ANALYSIS
The position and exercise of the President’s discretion is contingent upon
the political circumstances of the country. If there is a clear majority,
then the President does not have much scope of using his discretion.
However, as held in the case of Dinesh Chandra v. Chaudhary Charan
Singh,19 if there are multiple loose-knit parties, then the discretion of
19 Dinesh Chandra v Chaudhary Charan Singh, AIR 1980 Del 114.
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the President in the appointment of the Prime Minister and the
dissolution of the Lok Sabha may become crucial. Hence, it can be
deduced that the more the number of players in the political game, the
more chaotic it becomes, and any clear decision-making is obstructed.
The President then steps in to do what he has taken an oath for, i.e. to
protect the Constitution of the country. Hence, the President is not a
mere puppet figure who has no right or duty to exercise his discretion.
To sum it up, the President is largely a nominal figure on paper, as
envisaged by the Constitution makers. But, in practice, the diversity and
complexity of Indian politics has made President much more than that.
He ensures that in the political chaos, the supreme document does not
lose its relevance. The changes in the political setup might render him
more powerful and powerless at times. But nobody can negate his power
to intervene in the times of constitutional crisis in order to ensure that
the supremacy of the constitution is not lost in political competition.
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CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE
HUNDRED AND THIRD AMENDMENT) ACT, 2019
Abhishek Bhatt & Tarun Sharma †
ABSTRACT
The Constitution (One Hundred and Third
Amendment) Act, 2019 provides for 10%
reservations to the economically weaker sections of
the society, which is in addition to the existing
reservation for the socially and educationally
backward classes. The question arises regarding
the constitutionality of 103rd Amendment and
whether it is a violation of the right to equality,
which forms a part of the basic structure of the
Constitution of India.1 Originally, the Constitution
provided for reservation under Articles 15 and 16,
for the socially and educationally backward classes.
The Constitution does not provide reservation on
the basis of economic criteria, as the objective
behind reservation does not support the argument
that economic status should be a reason for
providing reservation quota.
This research deals with the constitutionality of the
103rd Amendment, providing 10% reservation to
the economically weaker section, whether it is in
tandem with the right to equality, and whether it
is actually necessary to provide reservation to those
who are not socially backward but economically
weak. The Mandal Commission case,2 where it was
specifically laid down that the reservation cannot
be more than 50%, and that economic criteria
should not be the only ground for reservation.
† The authors are 3rd year B.A. LL.B. students at University of Petroleum & Energy
Studies, Dehradun. They may be reached at [email protected] and
[email protected], respectively. 1 M. Nagaraj v. Union of India, AIR 2007 SC 71. 2 Indra Sawhney v. Union of India, AIR 1993 SC 477.
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I. INTRODUCTION
The Constitution (One Hundred and Third Amendment) Act, 2019 came
into effect on January 14, 2019, after the President of India, Mr. Ram
Nath Kovind, gave his assent to the Bill passed by the Parliament. The
Amendment introduces reservation on the basis of economic criteria in
the Constitution of India. It provides for a 10% reservation for the
Economically Weaker Section (“EWS”), in addition to the existing
reservations, i.e. for SCs, STs and OBCs. The 103rd Amendment brought
about a change in two fundamental rights, viz. Articles 15 and 16.3 The
aim of the amendment is to fulfil the commitment of the Directive
Principles of State Policy under Article 46 of the Constitution, which
talks about the promotion of educational and economic interest of the
weaker sections of the society.4
This Amendment targets the general category and these are the
prerequisites:5
a. The income of the family should be less than INR 8 lakhs per annum.
b. The farm land belonging to the family should be of less than 5 acres.
c. The family’s residential house should be of less than 1000 sq. ft.
d. The residential plot belonging to the family should be of less than
100 yards in a notified municipality.
e. If the area is not notified, then the residential plot should be of less
than 200 yards.
The Amendment has added two new clauses in Article 15 and 16 of the
Constitution, which are:
3 Shruti Rajagopalan, Why Amending an Inconvenient Constitution is a Political
Move, LIVE MINT (Jan. 21, 2019, 10:36 PM), https://www.livemint.com/opinion/online-
views/opinion-why-amending-an-inconvenient-constitution-is-a-political-move-
1548087321056.html. 4 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1353-70 (7th ed., Lexis Nexis 2014). 5 Mehal Jain, Constitutional 103rd Amendment Act, LIVE LAW (Jan. 27, 2019, 7:28
PM), https://www.livelaw.in/top-stories/lawyers-economic-reservation-sc-142291.
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a. Article 15(6) provides for reservations to the EWS for admission to
educational institutions, including private educational institutions,
whether aided or unaided by the State, other than the minority
educational institutions referred to in Article 30(1). The amendment
aims to provide reservation to those who do not come in the purview
of Articles 15(5) and 15(4).
b. Article 16(6) provides for reservations to people from the EWS in
government appointments.
The reservation is given on the basis of economic weakness, which can
be decided on the basis of family income and other indicators of economic
disadvantage.6
II. HISTORICAL BACKGROUND
Reservation is undertaken to address the historic oppression,
discrimination and unequal treatment faced by some of the
communities, and to help these communities achieve a status of
equality. The Constitution prohibits untouchability, and obligates the
state to make special provisions for the betterment of the SCs and STs.
The primary objective of the reservation system in India is to enhance
the social and educational status of the underprivileged communities,
since the efforts for the betterment of the untouchables and the
depressed classes began in various parts of British India during the
nineteenth century itself.
After the independence of India, Dr. B.R. Ambedkar, the spokesperson
for India’s untouchables and an architect of the Indian Constitution,
made provisions which abolished untouchability and provided social and
economic benefit for the Scheduled Castes and Scheduled Tribes. The
state is also authorized by the Constitution itself to make special
6 Shubham Barkar, Economic Reservation in India: Highlights and Analysis,
KHURANA AND KHURANA (Jan. 17, 2019, 9:30 AM), http://www.mondaq.com/.
INDIAN CONSTITUTIONAL LAW REVIEW
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provisions for the advancement for any socially and educationally
backward classes of citizens.7
1. PRE-INDEPENDENCE
In 1882, the Hunter Commission was appointed, and Mahatma Jyotirao
Phule made the demand of compulsory and free education for all, with
proportionate reservation in government jobs. The Maharaja of
Kolhapur introduced reservations for the non-Brahmins and the other
backward classes, much of which came into force in 1902. He had
provided free education to all and opened several hostels for the
students. He ensured that whosoever is educated were suitably
employed, by creating 50% reservation for the backward classes.
At the time of British Raj, the Government of India Act, 1909 was
introduced, in which elements of reservation can be found, and there
were many other measures put in place prior to independence. Then, in
the Round Table Conference of 1932, where the Prime Minister of
Britain, Ramsay MacDonald proposed the Communal Award, which
provides separate representation for the Muslims, Sikhs, Indian
Christians, Anglo-Indians, and Europeans.
2. POST-INDEPENDENCE
After the independence of India, some major initiatives in favour of the
SCs, STs and OBCs have been initiated under the Indian Constitution.
In 1953, the Kalelkar Commission was appointed to assess the situation
of the socially and educationally backward classes. Thereafter, in 1979,
the Mandal Commission was established to assess the situation of the
socially and educationally backward classes. In 1982, it was decided that
15% and 7.5% of vacancies in the public sector and the government-
7 Robert Fullinwider, Affirmative Action, STANFORD ENCYCLOPEDIA OF PHILOSOPHY,
2008.
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aided educational institutions should be specifically reserved for the SC
and ST candidates, respectively.
In 1978, a significant change began when the Mandal Commission was
established to assess the situation of the socially and educationally
backward classes. In 1980, the Commission recommended a reservation
quota of 27% for the OBCs, in respect of educational institutions and
public sector bodies. In the same year, the Commission submitted its
report, and recommended changes to the existing quotas that increased
from 22.5% to 49.5%. Other similar attempts have been made in the past
when, for instance, in 1991, the P.V. Narasimha Rao Government had
proposed a 10% reservation for the poor among the forward castes.
Further, in 2003, the Sachar Committee was established, which
prepared a report on the economic and educational status of the Muslim
community of India.8
III. PHILOSOPHY BEHIND THE RESERVATION AND
JURISPRUDENTIAL ASPECT
The whole idea of reservation indicates the principle of equality, which
can be traced back to the natural law doctrine. The concept of
distributive justice propounded by Aristotle provided for equal
treatment to all who are equal before the law. This indicates that legal
inequality between men and women, the blacks and the whites, the
upper caste and the lower caste should not be present in a democracy,
yet we cannot find a society that has completely eradicated these social
inequalities.9
John Rawls also supports the concept of social justice. His second
principle is known as the difference principle, which states that a policy
is just if it provides benefits for the least advantaged group, and if the
access to any privileged position is not blocked by discrimination on the
8 Puja Mondal, Reservation System in India (Jan. 21, 2019, 7:15 PM),
http://www.yourArticlelibrary.com/essay/mandal-commission-reservation-for-
backward-class/35168. 9 W. FRIEDMAN, LEGAL THEORY 416 (5th ed. 2013).
INDIAN CONSTITUTIONAL LAW REVIEW
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basis of relevant criteria. Rawls’ theory of justice completely supports
the policy of affirmative action,10 but he does not give an extent to which
this principle of justice would hold well. According to Rawls, each person
possesses an inviolability founded on justice that even the welfare of the
society as a whole cannot override.11
According to Herbert Spencer, an individual adopts from his society
something which is hereditary in nature. An individual inherits the
ideas of morality, obligations, rights and justice; therefore, different
sociological groups evolve differently and so do their laws.12
Discrimination, whether due to caste, creed or race, not only hampers
the mobility of a particular society, but also leads to its degeneration.
Just because of inequality, a section of the society remains
unrepresented, leading to all the benefits of the society being enjoyed
only by the represented castes.13
Reservation wishes to break this monopoly, which was earlier in the
hands of the upper castes in the Indian society. Reservation in India is
the affirmative action by which a percentage of seats are reserved in the
government services, educational institutions, the public sector units,
etc., except in the religious/linguistic minority educational institutions,
for the socially and educationally backward classes, i.e. the SCs, STs and
OBCs, who are inadequately represented in these services and
institutions. At the time of making of the Constitution, the framers of
the Constitution believed that SCs and the STs were historically
oppressed and denied respect and equal opportunity in the society, just
because of the prevalent caste system. Race, religion, ethnicity, national
or social origin have been the bases of discrimination since the pre-
independence era under the diverse social, economic and political
10 Dr. Jan Garrett, Rawls Mature Theory of Social Justice (August 24, 2005). 11 KLAUS R SCHERER, JUSTICE: INTERDISCIPLINARY PERSPECTIVES 18 (Cambridge
University Press 2009). 12 NK JAYAKUMAR, LECTURES IN JURISPRUDENCE 78 (2nd ed. 2010). 13 Quleen Kaur Bijral, Affirmative Action: The system of reservation and quota in
India, THE LOGICAL INDIAN (Jan. 17, 2019, 9:30 PM),
http://thelogicalindian.com/story-feed/awareness/affirmative-actionthe-system-of-
reservations-and-quotas-in-india/.
INDIAN CONSTITUTIONAL LAW REVIEW
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systems, which led to imbalance in terms of access to capital assets,
employment, education, political participation and other spheres. For
that matter, it is necessary to practice reservation, affirmative action,
positive action or equal opportunity for these discriminated groups.
IV. THE MANDAL COMMISSION’S RECOMMENDATIONS
The Mandal Commission was established in India in 1979 by the Janata
Party government under the leadership of Prime Minister Morarji
Desai. The aim of the Commission was to identify the socially and
educationally backward classes in India.14 In 1980, according to the
report of the Commission, the reserved quotas in the field of government
jobs and education were increased from 22.5% to 49.5%.15
The following were the terms of reference of the Mandal Commission:16
a. To determine the criteria for defining the socially and educationally
backward classes.
b. To recommend the steps for the betterment of the socially and
educationally backward classes.
c. To determine the desirability of making provisions for reservation in
favour of the backward classes, which are not adequately
represented in the services of both the Central and State
governments.
d. To present a report regarding the societal conditions, and making
such recommendations as they think proper. The Commission
observed that caste was also a class of people.
The Commission recommended the following:17
14 Arkoday Roy, Creamy Layer: The Mandal Commission View- The Present Day
Exclusion, LEGAL SERVICES INDIA (Jan. 17, 2019, 11:30 AM),
http://www.legalservicesindia.com/Article/Article/creamy-layer-the-
mandalcommission-view-535-1.html. 15 LALITA SHARMA, SOCIAL MOVEMENTS IN INDIA 39 (1st ed. 2014). 16 Mondal, supra note 8. 17 Id.
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a. Those who do not qualify on the basis of merit, 27% of the jobs is
reserved for them.
b. The 27% reservation be made for promotions at all levels.
c. The unfilled reserved quota be carried forward for a period of three
years, and de-reserved thereafter.
d. The age relaxation be the same for the backward classes as it is in
the case of the SCs and the STs.
e. The roster system, which was made for the SCs and STs, be applied
similarly on the backward classes.
f. The reservation should be made applicable to all public banks, public
sector undertakings, and private undertakings receiving grants from
the Central and State governments, as well as similarly placed
universities and colleges.
g. The Government should make legal provisions, which are necessary
for the implementation of these recommendations. The Commission
recommended the implementation of an intensive and time-bound
programme for the education of the backward classes, and open
residential schools for the backward class students.
The 27% reservation was, thus, suggested for seats in educational
institutions as well as in jobs. The suggestions regarding the upliftment
of backward classes were also made by the Commission to bring about
structural changes in Indian society.
V. ECONOMIC CRITERIA AS A BASIS OF CLASSIFICATION
FOR SOCIALLY AND EDUCATIONALLY BACKWARD
CLASSES
The application of economic criteria to determine social and educational
backwardness has often been put up for the scrutiny of the Indian courts,
starting from the case of Kumari Jayashree v. State of Kerala.18 The
18 Kumari Jayashree v. State of Kerala, AIR 1976 SC 2381.
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Apex Court held that while caste and economic criteria individually
cannot be the sole basis of classification, together they were valid
criteria for determining social and educational backwardness.19 In the
words of the Court:
Social backwardness is in the ultimate analysis the result
of poverty to a large extent. Social backwardness which
results from poverty is likely to be aggravated by
considerations of their caste. This shows the relevance of
both caste and poverty in determining factor of social
backwardness. Poverty is relevant in the context of social
backwardness. Social backwardness is the result of poverty
to a very large extent. Caste and poverty are both relevant
for determining the backwardness. But neither caste alone
nor poverty alone will be the determining tests.
Article 15(4) does not grant the SCs, STs and the other socially and
educationally backward classes the right to reservation. It is merely an
enabling provision, and the state has the discretion to provide for
reservations. A writ filed by one of the member of the above classes,
praying the court to direct the State to provide for reservation cannot be
sustained.20 The judiciary has repeatedly taken the view that Article
15(4) does not provide a right to reservation and provides that the
reservation be left to the discretion of the State.
In Janaki Prasad Parimoo v. State of Jammu and Kashmir, it was
reiterated that economic criteria could not be the singular criteria to
determine backwardness, because in a country like India, most of the
people are poor, especially in the rural areas. Following this logic, a class
of priests were held not to be socially and educationally backward.
Moreover, farmers who were classified as backward based on their land
holdings, were held to be not so. The Supreme Court has repeatedly said
19 ANIRUDH KRISHNAN & HARINI SUDERSHAN, LAW OF RESERVATION AND ANTI-
DISCRIMINATION 278 (1st ed. Lexis Nexis 2008). 20 Anil v. Dean, Medical College, Nagpur, AIR 1985 Bom 153; Dr. N M Prasad v.
Director, Sri Jayadeva Institute of Cardiology, AIR 1994 Kant 309.
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that if reservations were made only on the ground of economic
considerations, an untenable situation would arise due to the fact that
even in sections of the society which are recognised as socially and
educationally advanced, there are large pockets of poverty, and such
people would end up benefitting from the reservation.21
The judgment given in K.C. Vasanth Kumar v. State of Karnataka22
discussed the economic criteria for determining social and educational
backwardness in detail. Desaii, J., for the first time, took the view that
economic consideration should be the sole criteria for determining social
backwardness, and emphasised that the benefits of the caste-based
reservation are enjoyed only by the economically well-off sections of the
society. Chinappa Reddy, J. also gave great importance to the economic
criteria. While analyzing backwardness using Max Weber’s theory, he
observed that from the angle of class, status and power, poverty was one
of the prime causes of the problem. He observed: “The lower the caste the
poorer its members. The poorer the members of a caste, the lower the
caste.”23 He, however, did not disregard caste as a criterion for deciding
backwardness. Poverty, caste, occupation and habitation were
considered by him to be the primary factors that ought to be considered
in order to classify a class as backward. He was of the thought that
poverty could not be the sole criterion for the following reasons:
a. In India, a majority of the forward castes were also poor, and these
people should no doubt be protected through other means, but not
through reservation.
b. It would be very difficult and would cause administrative headaches
to prove whether someone meets or does not meet the economic
criteria.
In Indra Sawhney v. Union of India,24 the view of Chinappa Reddy, J.
was appreciated by Jeevan Reddy, J. Thus, as for now, the position is
21 Krishnan & Sudershan, supra note 19, 279. 22 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. 23 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. 24 Indra Shawhney v. Union of India, AIR 1993 SC 477.
INDIAN CONSTITUTIONAL LAW REVIEW
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clear that economic criteria, just like caste, can be one of the criteria,
but cannot be the sole criterion. This was made clear in the Indra
Sawhney case, where the issue was regarding the reservation of 10% of
the posts in favour of the other economically backward sections, who are
not covered by any of the existing reservations. It was held that such
reservations would not fall within the ambit of Article 16(4) and would
violate Article 16(1). Relying on these dicta, many High Courts have
declared a system of reservation for the economically backward classes
as unconstitutional in various cases, such as Asha D. Bhatt v. Director
of Primary Education.25
Poverty is not an immutable characteristic such as race or sex, nor is it
stigmatic in the way caste is. It is possible to eradicate poverty with
appropriate policy changes. A sustainable and equitable economy needs
to be in place with redistribution of income and wealth.26 Hence, the
position seems clear, as interpreted by the learned judges of Supreme
Court and High Courts, that the intention of the framers of the
Constitution would not be met if reservation is given solely on the basis
of economic criteria.
VI. WHAT WOULD CONSTITUTE A SOCIALLY AND
EDUCATIONALLY BACKWARD CLASS?
In M.R. Balaji v. State of Mysore,27 the Supreme Court proclaimed that
backwardness would have to be both social and educational in nature.
The backwardness under Article 15(4) must be social or
educational, but it is both social and educational and this
takes us to the question as to how social and educational
backwardness has to be determined.
25 M.R. Balaji v. State of Mysore, AIR 2003 Guj. 197. 26 Indira Jaisingh, Why the 10% reservation could fail the constitutional test,
BLOOMBERG QUINT (Jan. 10 2019, 11:42 AM),
https://www.bloombergquint.com/opinion/reservation-why-the-10-quota-could-fail-
the-constitutional-test-by-indira-jaising#gs.hhMy2ztu. 27 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
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The next question was whether a classification based on caste alone
would be a valid test to determine social backwardness? Does class refer
to caste? Then, what would be educational backwardness? The Supreme
Court asserted that caste was definitely a relevant criterion in
determining social backwardness; however, it should not be the sole
criterion. A number of other facts also needed to be considered. These
factors included:
a. Poverty level, as the social backwardness arising due to poverty is
aggravated due to caste criterion;
b. Occupation and the societal inequality with respect to treatment of
professions;
c. Place of habitation, though it has a comparatively minor role to play.
Thus, it is clear that caste alone cannot be the sole criterion for
reservation, and it has to be accompanied by the other relevant factors,
as mentioned above. Thus, relying solely on one factor, i.e. poverty, for
providing reservation seems similarly unjustifiable and lacking in logic.
The Supreme Court has never denied that caste is one of the most
important factors for determining social and educational backwardness,
and deviating from that path to provide reservation to a caste which
enjoys a higher position on the social ladder is unjust for everyone.
It is an undeniable fact that a caste system exists in the Hindu culture
and society, and to determine the social backwardness of an individual,
we need to see his/her caste. This may not be the case in the other
religions, i.e. for Muslims or Christians or Jains, but it has to be seen
for the Hindus. The occupations of citizens may also contribute to make
classes of citizens socially backward. There are some occupations which
are treated as inferior, according to the conventional beliefs, and the
classes of citizens who follow these occupations may be considered
socially backward.28 Practicing as a priest is certainly not one of those
professions which are treated as inferior in comparison with other
28 Krishnan & Sudershan, supra note 19, 274.
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professions; instead, it is considered a very holy and noble profession to
profess.
For once, the position was settled in Indra Sawhney v. Union of India,
where, with respect to Article 16(4), the Court was posed with the
question as to whether a caste-based classification would be valid for
determining socially backward classes. The Mandal Commission gave a
report, the implementation of which was questioned, and among the
many arguments was that caste could not be the basis of classification.
The contention was that a secular casteless society is a basic feature of
the Constitution, and this cannot be achieved if the caste-based
classification is permitted; the classification must be individual-based
and not caste-based. The legislature, without disturbing the existing
reservation for the SCs, STs, and OBCs, has somewhere given force to
these contentions from the Indra Sawhney case. However, the Supreme
Court rejected the contentions and analyzed the caste-class correlation
in great detail. The observations of the Court were that:
… caste is nothing but a social class a socially homogeneous
class. It is also an occupational grouping, with this
difference that its membership is hereditary. One is born
into it. Its membership is involuntary. Even if one ceases to
follow that occupation, still he remains and continues a
member of that group. To repeat, it is a socially and
occupationally homogeneous class. Endogamy is its main
characteristic. Its social status and standing depend upon
the nature of the occupation followed by it. Lower the
occupation; lower the social standing of the class in the
graded hierarchy. In rural India, occupation – caste nexus
is true even today. … For the purpose of marriage, death
and all other social functions it is his social class-the caste
that is relevant. ... As observed by Dr, Ambedkar, a caste is
at an enclosed class and it was mainly these classes the
Constituent assembly had in mind-though not exclusively
while enacting Article 16(4). Urbanization has to some
extent broken this caste occupation nexus but not wholly. …
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In a rural context, of course, a member of barber caste
carrying on the occupation of washer men or vice versa
would indeed be a rarity. It is simply not done. There may
be exceptions here and there, but we are concerned with
generality of the scene and not with exceptions or
aberrations. Lowly occupation results not only in low social
position but also in poverty; it generates poverty. All the
decisions since Balaji speak of this ‘caste-occupation-
poverty’ nexus. The language and emphasis may vary but
the theme remains the same. We are not saying it ought to
be encouraged, it should not be. But any program designed
to eradicate this evil must recognize this ground reality and
attune its program accordingly. Merely burying our heads
in the sand Ostrich-like would not help.29
Providing 10% reservation to the economically weaker sections of the
general category, therefore, ignores the ground realities that Supreme
Court averred very beautifully in the Indra Sawhney judgment.
VII. WEAKER SECTION OF SOCIETY
The propounded reservation under the new Amendment provides a 10%
reservation for the economically weaker sections. So, the question arises
whether economically weaker section of the society is synonymous to the
concept of socially backward classes? The State provides for exemptions
and concessions for the weaker sections of the society in accessing
various social facilities. One such example is exemption in court fees for
the SCs, STs, minors etc. This list also includes persons belonging to the
economically weaker sections of society.
The opinion given by Chinappa Reddy, J. in the Indra Sawhney case is
somewhere relevant for this concept of economically weaker sections of
society. He opined that, in India, a majority of forward castes were also
poor, and these people should no doubt be protected through other
29 Indra Shawhney v. Union of India, AIR 1993 SC 477.
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means. These other means are exemptions and concessions in accessing
public facilities and services of the government. To endeavour for the
betterment of the weaker sections of society is a basic tenet of a welfare
state, which the Indian Constitution promotes through the Directive
Principles of State Policies. Article 46 talks about the promotion of
educational and economic interests of the Scheduled Castes, the
Scheduled Tribes and the other weaker sections. The State shall
promote, with special care, the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social injustice
and all forms of exploitation. Applying the principles of noscitur a sociis
and ejusdem generis, the term other weaker sections of the society derives
its meaning from the terms used along with it. So, the weaker sections
need to be similar to the SCs and the STs, and the argument that the
poor people from the general category, which itself comprises the upper
castes, is similar to them doesn’t seem to be a valid argument.
VIII. EXTENT OF RESERVATION PERMISSIBLE UNDER
ARTICLE 15(4) AND 16(4)
Dr. Ambedkar, in his speech at the Constituent Assembly, made the
point that reservation should be “confined to a minority seats”.30 This
was not opposed by anybody else in the Assembly, leading to the
irrevocable conclusion that 50% ought to be maximum limit for
reservation. The Supreme Court has also accepted this as the limit. In
M.R. Balaji v. State of Mysore,31 the maximum capping for reservation
was discussed for the first time, wherein 68% of the seats were reserved
for the Scheduled Castes, Scheduled Tribes, and other backward classes.
The Supreme Court, in its decision, observed that it must not be ignored
that Article 15(4) is a special provision for the advancement of the SCs,
STs and backward classes; it is not a provision which is exclusive in
character, such that, in looking after the advancement of those classes,
30 Krishnan & Sudershan, supra note 19, 290. 31 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
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the State would not be justified in ignoring the advancement of the rest
of the society. So, if a provision, which is in the nature of an exception,
completely excludes the rest of the society, it clearly is outside the scope
of Article 15(4).
It would be extremely unreasonable to assume that in enacting Article
15(4), the Parliament intended to provide advancements for the SCs,
STs and other backward classes, and the remaining citizens constituting
the rest of the society were to be completely ignored. The Court
concluded that 68% reservation is a fraud with regards to the
Constitution. This debate of capping was put to halt in the Indra
Sawhney case,32 where the Court held that Article 16(4) spoke of
adequate representation and not proportional representation, as given
in Articles 300 and 302 of the Constitution. A provision that was for the
betterment of certain sections of the society must also be reconciled with
the interest of the remaining citizens, and hence, a 50% limit would be
reasonable. It was agreed that this limit would cover reservation under
16(4), but would not apply to exemptions, concessions and relaxations,
if any, provided to the other backward class of citizens.
The Hon’ble Supreme Court, speaking through the Constitution Bench
in the case of M. Nagaraj v. Union of India, upheld the constitutional
validity of Article 16(4A) and the proviso to Article 335 in the following
words: “We reiterate that the ceiling limit of 50%, the concept of creamy
layer and the compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of
opportunity in Article 16 would collapse.” In paragraph 104, the Court
specifically states that “be it reservation or evaluation, excessiveness in
either would result in violation of the constitutional mandate.” Thus, the
50% ceiling limit of reservations has been engrafted as a part of the basic
structure of the Constitution.
32 Mondal, supra note 8.
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IX. BASIC STRUCTURE AND RESERVATION
To know the relationship between the basic structure of the Constitution
and reservation, the most obvious case that needs to be discussed is
Kesavananda Bharati case,33 that is, the very first case which gave the
principle of basic structure to check the constitutional validity of any
constitutional amendment that the Parliament brings about. The
largest constitutional bench of thirteen judges was constituted for this
landmark case, and it clarified that the Parliament can amend the
fundamental rights, but cannot amend the basic structure of the
Constitution. The question of what constituted the basic structure was
answered through various decisions of Supreme Court subsequently.
However, there is no exhaustive definition that can define basic
structure. Whether the concept of equality is basic feature of
Constitution was, however, not clearly answered in the Kesavananda
Bharati case.
The first case to declare equality as a basic feature of the Constitution
was Indira Gandhi v. Raj Narain,34 also known as the Election case, and
the first time the Supreme Court brought aspects of the reservation
controversy within the domain of the basic structure doctrine was in
Indra Sawhney II.35 In Indra Sawhney II, the Supreme Court held that
the principle of equality enshrined in Article 14, of which Article 16(1)
is a facet, is a basic feature of the Constitution.36 The Court, in the
Nagraj case, provided for two tests to be applied while judging the basic
structure, namely, the width test and the identity test. The identity test
is based on the concept of constitutional identity, and any amendment
which destroys the identity of the Constitution would abrogate its basic
structure. With reference to equality, it is Articles 14, 15 and 16,
particularly Article 16(4), which constitute the basic structure.
33 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and
Anr., AIR 1973 SC 1461. 34 Indira Gandhi v. Raj Narain, AIR 1975 SC 865. 35 Indra Sawhney v. Union of India, AIR 2000 SC 498. 36 Krishnan & Sudershan, supra note 19, 657.
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Therefore, while providing for reservation, the identity of these Articles
should not be disturbed.
1. THE EQUALITY TEST
Article 14 forbids class legislation, but does not forbid reasonable
classification for the purpose of legislation.37 Class legislation is
permissible if the classification on which it is based is rational and has
a nexus with the object sought to be achieved.38 According to the
principle of intelligible differentia, differential treatment violates Article
14 only when there is no reasonable basis. What is, however, necessary
is that there must be a substantial basis for making the classification,
and that there should be a nexus between the classification and the
object under consideration. In other words, there must be some rational
nexus between the basis of classification and the object intended to be
achieved.
The question that arises ia whether providing 10% reservation to the
economically weaker sections fulfils the tests of equality, i.e. reasonable
classification and intelligible differentia. The philosophy or the objective
behind giving reservation is to fill the gap which is based on the social
status, that has been created over the past centuries. Those who are
depressed historically because of the caste system or their social status
are eligible to get the reservation quota. Also, the intention of the
Constitution framers at the time of making of the Constitution was to
provide benefit of reservation only to socially and educationally
backward classes, and not to economically weaker sections. The current
10% reservation to the economically weaker sections is questionable on
the grounds that whether a person whose family’s gross income is up to
INR 8 lakh per annum can be called as economically weak person. For
instance, if the policy is implemented, another question is whether the
section of the society which ought to be benefitted from this reservation
37 Sakhawant Ali v. State of Orissa, AIR 1955 SC 166. 38 Ratnapoorva Devi v. State of Orissa, AIR 1964 SC 1195.
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will get the benefit or the section earning above INR 4-5 lakhs per
annum will end up getting most of these reservations. Thus, this 10%
reservation fails the test of nexus of the law with the object sought to be
achieved.
X. ANALYSIS
The debate for reservation on an economic basis is not a new debate. It
traces its history back to the Indra Sawhney case, when similar
attempts were made by the P V Narasimha Rao government, by
proposing a 10% reservation for the poor among the forward castes, but
the Apex Court had struck down the law as unconstitutional. The
present government, instead of bringing an ordinary law, brought a
Constitutional Amendment Bill (the 124th Constitutional Amendment
Bill). Now, the Constitution stands amended, as none of the political
parties could have afforded to be known as anti-poor and anti-general
before the upcoming 2019 elections, and therefore, it was passed without
much opposition in both the Houses. An ordinary legislation is subject
to the limits of Constitution, but a constitutional amendment is only
subject to the basic structure doctrine. The basic structure test would
not have been there, had there been no Kesavananda Bharati or Nani
Palkivala. Due to the Kesavananda Bharati case,39 there is always a
chance of judicial scrutiny and judicial review for every constitutional
amendment, as this case laid down the fundamental principle that the
law-making power of parliament is not absolute and unlimited. The
Court held that judicial review is one of the basic features of the
Constitution, and the work of interpretation of the laws and the
Constitution has been assigned to judiciary. The National Judicial
Appointment Commission Bill is the best recent example where a
Constitutional Amendment Act passed by both the Houses of
Parliament was struck down by the judiciary. Similarly, now we have
this 103rd Constitutional Amendment Act, which will now face the basic
39 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and
Anr., AIR 1973 SC 1461.
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structure test. The Apex Court has made it clear that the reservation
cannot exceed the 50% capping, which was first laid down in the M.R.
Balaji case,40 and then more clearly in the Indra Sawhney case.
The Indra Sawhney case41 also made it clear that reservation cannot be
given solely on the basis of economic criteria. As it was a nine judge
bench decision, a larger bench will be needed to overrule the Indra
Sawhney ruling. However, we should not forget that these rulings were
given in relation to a law or subordinate legislation and have never faced
the test of the basic structure doctrine. The most pertinent thing to
understand is the logic behind reservation. Reservation is not a policy
measure aimed at removing poverty, but positive discrimination for a
section of the society which has faced persecution from time
immemorial, and for making that section stand on an equal pedestal in
the society. Basing it on economic criteria will change the entire
meaning of reservation, which is likely to produce a lot of confusion and
social conflict. Interestingly, even if a person from the general category,
with the help of reservation, gets appointed in a government job, what
is the probability that he will get a job where he can get a yearly salary
of more than INR 8 lakh rupees per annum? The probability is less, and
with a salary of less than INR 8 lakh rupees per annum, his son or
daughter will be considered eligible for reservation again, and this will
become a vicious cycle. And reservation was never supposed to be a
never-ending cycle, but only a launch pad to make people reach a place
where they will not face discrimination any more, and will have equal
access to public resources.
40 M.R. Balaji v. State of Mysore, AIR 1963 SC 649. 41 Indra Sawhney v. Union of India, AIR 1993 SC 477.
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VIABILITY OF RESERVATION FOR ECONOMICALLY
WEAKER CLASSES
Priyanka Singh†
ABSTRACT
The affirmative action sanctioned by the Indian
Constitution and executed by different
governments is called the Reservation Policy.
Reservation Policy is one of the constitutional
methods embraced by India to address the issues of
hundreds of years of oppression faced by specific
castes, thereby bringing about a wide range of
disparities. The present arrangement of
reservation benefits individuals of certain
haphazardly listed castes and places them on a
superior level, irrespective of their present social,
educational and economic status. The children of
administrative officers, judges, ministers and
economically well-off people get the advantage of
reservation, as economic criterion is not considered.
The people belonging to forward castes are not
given any reservation benefits even if they come
from a poor family where they have no resources to
get proper education. They are discriminated
against even if they are better in terms of merit.
The researcher seeks to study the viability of
reservation for such economically weaker classes of
the so-called forward castes. The economically
weaker classes of forward castes started
demanding reservation and the contemporary
government took a step in their favour by bringing
in the 103rd Constitutional Amendment, which
provides for 10% reservation for the Economically
Weaker Classes in educational institutions and
† 2nd year law student at Damodaram Sanjivayya National Law University,
Nyayaprastha, Visakhapatnam. The author may be reached at
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public services. The researcher will discuss about
the evolution of reservation system in India, with
regards to these contemporary changes.
The researcher will further deal with the
arguments in favour of and against the validity of
reservation for the economically weaker classes.
We will also discuss the recently passed 103rd
Constitutional Amendment in this paper. And at
the end, the researcher will conclude by
determining the viability of such a reservation.
I. INTRODUCTION
The Indian Constitution specifies its objectives of imparting justice and
equality in its Preamble itself. To give everyone equal opportunities in
matters of education and employment is the first step in the direction of
achieving these objectives. The Preamble to the Constitution defines
India as a socialist state, which puts a responsibility on the government
to make welfare legislations and strive for the establishment of an
egalitarian society. But the reality, on the other hand, is very appalling.
Even after 69 years of India becoming a republic, we have miserably
failed to fulfil this dream of the founding fathers of our Constitution.
There have been many attempts by different governments to bring in
welfare legislations, either with the purpose of promoting equality or to
woo the general public before elections. One such legislation is the 103rd
Constitutional Amendment,1 which has become the subject-matter of
discussions and deliberations these days. This amendment provides for
10% reservation for the economically weaker sections in areas of
education and employment, which has always been a matter of debate.
There are various arguments which are being put up about the validity
and the invalidity of such a constitutional amendment. The researcher
will deal with both sides of arguments in this paper.
1 The Constitution (One Hundred and Third Amendment) Act, 2019.
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Reservation, which is also called as protective discrimination or
affirmative action, has been expressly provided for in Articles 152 and
163 of the Indian Constitution in order to uplift the historically
oppressed classes and to bring them at par with other classes. It is one
of the aspects of public policy through which the interests of the
underprivileged of the Indian society are sought to be safeguarded. The
reservation policy aims at making amends for centuries of historical
wrongs inflicted on the undermined sections of the Indian society. The
reservation for socially backward classes like the Scheduled Castes and
the Scheduled Tribes has been there since the very inception of the
Constitution, but new contours have since emerged in this aspect. A
number of other classes also started demanding reservation, with the
progress of the society. These classes were combined together and were
given reservation in the name of Other Backward Classes in 1990. This
reservation has been given to the castes which were considered lower in
the social ladder of Indian society. The idea behind the reservation
policy is that these people have suffered a lot due to social practices
prevailing in the society, and now is the time to uplift them by undoing
the wrongs which have been done to them throughout history, be it
untouchability or any other similar social evil. Similar is the situation
for the economically weaker sections today: they are being deprived of
their basic rights due to their financial incapacity, and it becomes the
responsibility of the state to take special measures to bring them up.
Now is the time when the classes which are believed to be upper castes
in the society are also demanding for reservation benefits due to their
financial inability. The economically incapable and the poor are also a
part of the vulnerable and downtrodden sections of the society, and
reservation should be given to them as well, in order to bring them to
the mainstream. The researcher will seek to understand the need and
viability of such a demand for reservation in education and employment,
and consider its validity on the touchstone of constitutional principles.
2 Article 15(3) and (4) of the Constitution of India, 1950. 3 Article 16(4) of the Constitution of India, 1950.
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II. EVOLUTION OF THE RESERVATION SYSTEM IN
INDIA
The policy of reservation was introduced in India long ago by the people
who ruled us, i.e. the British. They introduced reservations on the basis
of caste and community in order to implement their policy of divide and
rule. The intention behind this policy was to widen the gap between the
Hindus and the Muslims as well as the upper caste and the lower caste,
and to continue ruling our country. In 1925, the British Government of
India initiated the policy of reserving a certain percentage of posts in
government service for the minority communities. “Then in 1934, an
order provided that 25% vacancies will be exclusively reserved for
Muslims, and 81/3% to other minority communities.”4 And then, in
1943, reservation exclusively for the SCs was also introduced in order to
please Dr. B.R. Ambedkar.
In the post-independence period, communal representation was
replaced by the policy of reservation for the SCs and STs in educational
institutions and public services. A heated debate took place in the
Constituent Assembly regarding the reservation system. And at the end,
the Constitution makers gave way to introducing the policy of
reservation in the Constitution.
The Constitution itself, in various Articles, provides for positive
discrimination. Article 15(3) says that special provisions can be made
for welfare of women and children.5 Article 15(4) provides that special
provisions may be made for the advancement of any socially and
educationally backward class and for the Scheduled Castes and the
Scheduled Tribes.6 Article 16(4) permits the State to make any provision
for the reservation of appointments or posts in public services.7 Article
46 directs the State to promote, with special care, the educational and
economic interests of the weaker sections, in particular the Scheduled
4 J. Laxmi Narasimha Rao, Affirmative Action in India: Emerging Contours, 69 THE
INDIAN JOURNAL OF POLITICAL SCIENCE 483, 483-492 (2008). 5 Article 15(3) of the Constitution of India, 1950. 6 Article 15(4) of the Constitution of India, 1950. 7 Article 16(4) of the Constitution of India, 1950.
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Castes and the Scheduled Tribes.8 Article 335 asks State to take into
consideration the claims of the SCs and the STs in the making of
appointments to services and posts.9 These Articles provide for
reservation for the SCs and STs.
Initially, there was no provision of reservation for the Other Backward
Classes. It was on January 1, 1979 that the former Prime Minister of
India, Morarji Desai, appointed a Backward Classes Commission,
popularly called Mandal Commission, under Article 340.10 The
Commission submitted its report in December, 1980. They identified
3743 backward classes and recommended for 27% reservation for
backward classes in government jobs. On 13 August, 1990, Prime
Minister V.P. Singh’s Government issued a memorandum accepting the
proposal, and announced a 27% reservation for the educationally and
socially backward classes.
Later, a few changes were made to the memorandum by the P.V.
Narasimha Rao-led Government.11 There was turmoil in the country
regarding the 27% reservation for the backward classes. A bench of nine
judges was set up in the Supreme Court for this purpose in the case of
Indra Sawhney v. Union of India,12 also known as Mandal Commission
case. With a ratio of 6:3, they upheld the reservation policy for the
backward classes with certain guidelines.
Dr. B.R. Ambedkar, the architect of the Indian Constitution once stated:
On the 26th January 1950, we are going to enter into a life
of contradictions. In politics we will have equality and in
social and economic life we will have inequality. In politics
we will be recognizing the principle of one man, one vote and
one value. In our social and economic life, we shall, by
reason of our social and economic structure, continuing to
8 Article 46 of the Constitution of India, 1950. 9 Article 335 of the Constitution of India, 1950. 10 Article 340 of the Constitution of India, 1950. 11 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1033-1034 (8th ed. 2018). 12 Indra Sawhney v. Union of India, AIR 1993 SC 477.
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deny the principle of one man one value. How long shall we
continue to deny equality in our social and economic life?
We must remove this contradiction at the earliest possible
moment or else those who suffer from inequality will blow
up the structure of political democracy which this Assembly
has so laboriously built up.13
Dr. Ambedkar said that the hurdle of inequality must be removed for
the survival of democracy, and the inequality which he refers to is of two
kinds: the first being social inequality, and the other, economic
inequality. In order to remove social inequality, steps have already been
taken by the government by introducing positive discrimination. And
that has been in place for the socially and educationally backward
classes for seventy odd years. But no such big step has been taken for
the economically backward, and thus, we will continue to live a life full
of contradiction until and unless similar steps are taken to include them
in the mainstream. But then, the greater question is whether
reservation is the only way? Maybe it is not the only way, but since its
benefit is being availed by one class, it is obvious for the other class to
demand for the same.
Prima facie, it appears that the idea of reservation is an exception to
equality under Article 14, but when we dig deeper, we can understand
that, in fact, identical treatment for all will lead to inequality, because
by the very nature of society, everybody is placed in different
circumstances, and applying the same law to people differently
circumstanced would be injustice.14 So, the State needs to enact laws in
the best interest of the safety and security of the people, and for this
purpose, a reasonable classification is not just permitted but may be
necessary for the progress of the society.15
13 13 VASANT MOON, DR. BABASAHEB AMBEDKAR, WRITINGS AND SPEECHES 1216
(Department of Education, Government of Maharashtra 1994) 14 Atyant Pichhara Barg Chhatra Sangh v. Jharkhand State Vaishya Federation,
AIR 2006 SC 2814. 15 E.P. Rayappa v. State of Tamil Nadu, AIR 1974 SC 555.
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Thus, providing special benefits to the economically weaker classes
through reservations can be done by making a classification, but such a
proposition has to pass the litmus test of reasonableness. The need for
providing reservations to economically weaker has to be considered,
looking at all the circumstances.
III. ARGUMENTS IN FAVOUR
Equality is a part of the basic structure of the Constitution.16 The idea
of introducing reservation for the economically weaker sections is based
on the principle of equality. The poor are underprivileged, and do not
have access to a number of basic amenities due to their financial
constraints. Thus, they are denied equal opportunities in matters of
employment and education. This becomes a pressing situation for the
state to play its welfare role and provide them with the much-needed
basic amenities and include them in the mainstream. The reservation
policy aims to provide opportunities to the poor who are not covered in
the reservation of SC/ST/OBC, that is, the economically weaker people
of the general category. The poor of the general category and the poor of
the other categories are similarly situated inasmuch as they face the
same difficulties in fulfilling even their basic needs. But one is given a
special privilege in the form of reservation, and the other is denied the
same, only on the basis of the caste. But the Supreme Court itself, in the
case of Balaji v. State of Mysore,17 stated that “Caste by itself cannot be
determining factor of backwardness though it may be one among several
factors. It is a relevant factor but not the sole factor.”18 So, neither the
courts nor the state can now deny reservation for the economically
weaker section only on the ground that they belong to the upper caste,
since the same treatment has been provided to the poor of the lower
caste.
16 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 17 Balaji v. State of Mysore, AIR 1963 SC 649. 18 Id.
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The Preamble talks about social, economic and political justice. Social
justice is inclusive in nature; it can be achieved only when each and
every individual of this society is raised to an equal pedestal. Poverty is
a mark of backwardness where people are denied of their basic rights.
The need is to bring these people out of their economic limitations, and
provide them with their much-deserved rights. And reservation is one of
the best ways to give them the opportunity and space to come out of their
shells, especially where they have lost faith in the state and the justice
system.
Poverty denies people the opportunity to lead a decent and sustainable
life. Reservation, by the prevalent logic, ensures participation of the
disadvantaged and vulnerable groups in education and employment
through positive discrimination. Hence, there is a strong case for
providing reservation to the economically weaker classes of the general
category, as the economically weaker sections of the other categories are
already covered under their respective reservation policies.
Article 15(4), which provides for special provisions for the socially and
educationally backward classes, was also not there in the original
Constitution, but was introduced through First Constitutional
Amendment in 1951, when the need was felt for providing these sections
of the society with some special privileges to bring them up. So, now that
we feel that there is a strong requirement to give some special privilege
to the economically weaker section to uplift them, it can be surely done
by making another amendment to the Constitution. Since it has already
been done once and held to be valid, this should the right path to go for.
The Constitution is a living document. It changes with the changing
needs of the society. It changes with changes in customs and usage, and
in culture and traditions. Now, the society needs a policy of reservation
for the economically weaker, and it must be granted for the well-being
of the society and the upliftment of the poor.
Initially, there was no provision of reservation for the Other Backward
Classes. But with the passage of the time, they started demanding
reservation on the basis of their social and educational backwardness.
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And the government, in 1990, was forced to give them reservation, and
the same was upheld by Supreme Court. History is repeating itself. The
situation is similar to the one in 1990: this time, the government has felt
the need to bring in a reservation policy for the economically weaker
section, as they are highly deprived of their basic rights due to their
poverty. The government introduced the 124th Constitutional
Amendment Bill to achieve this aim. It has been passed by the
Parliament and has become a law now. But the test of judicial scrutiny
is yet to be cleared. People are already arguing that the Apex Court will
declare it as unconstitutional. But when the Court understood the need
of the society in 1992 in the judgment of Indra Sawhney,19 they will also
understand it today. The Court will see the pros and cons of the law and
may reiterate the path it chose in 1992; it will realise the need for the
upliftment of the poverty-stricken classes in order to make our society
just and fair for everyone.
In the case of Chitralekha v. State of Mysore,20 two factors, i.e. economic
conditions and professions, were taken into account to define
backwardness, but caste was ignored. This was challenged before the
Supreme Court. The Court said that identification or classification of
backward classes on the basis of occupation-cum-income, without
reference to caste, is not bad and would not offend Article 15(4).
Considering this judgment of the Supreme Court, reservation on the
basis of economic criteria can be allowed.
The aim of the Constitution makers was to make India an inclusive and
egalitarian society, but if a chunk of our population is denied their basic
right to education and employment due to lack of money, then we are
failing that aim. There is a need to implement policies for the welfare of
these poor people and by providing them education and employment, we
will be able to use our human resources in a better way – we will get
skilled labour and India will move ahead on the path of development.
We have one of the largest human resources in the world: the need is to
19 Indra Sawhney v. Union of India, AIR 1993 SC 477. 20 Chitralekha v. State of Mysore, AIR 1964 SC 1823.
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just develop their potential in the right way. Therefore, by taking this
step and by providing reservation to the economically weaker sections,
we will make our society a better place to live in.
IV. ARGUMENTS AGAINST
There has always been great resistance in the matter of giving
reservation to the economically weaker classes. There are a number of
arguments which are put forth to justify this resistance. The policy of
reservation was started initially for the SCs and STs as they were
historically oppressed and disadvantaged; it was a much-needed step to
bring them out of their ghettos. Then, with time, a few of the Other
Backward Classes started demanding reservation, showing their social
and educational backwardness, and the same was extended to them.
Now, the economically backward classes are demanding this protective
discrimination, but if we will go on granting the same, then everybody
else will start demanding it for some or the other justifiable reasons, and
the policy will lose its essence and meaning. Also, reservation will reach
such a high percentage that the reasonable equality of opportunity will
be denied to the unreserved classes. In the case of Devadasan v. Union
of India,21 the Supreme Court held that “the power vested to the
government under Article 16(4) could not be exercised so as to deny
reasonable equality of opportunity in public employment”.22
There are certain provisions in the Constitution which concede to the
policy of reservation but none of them allow reservation for the
economically weaker sections. If such reservation was needed, our
visionary Constitution makers would have given it a place in the
Constitution. Article 15(4) allows for reservation for the advancement of
the socially and educationally backward classes. Article 16(4) also
empowers the state to make special provisions for the reservation of
appointments in favour of any backward class of citizens. The Supreme
21 Devadasan v. Union of India, AIR 1969 SC 179. 22 Id.
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Court, through various judgments, has defined which classes can be
considered as backward, in order to get the benefit under these sections.
The following are the criterion which needs to be fulfilled in order to be
considered as a backward class, according to various decisions of
Supreme Court:23
a. Article 15(4) and Article 16(4) speak of classes only, not of caste.
b. Caste, poverty, occupation, etc. by itself cannot be the sole
determining factor for backwardness, though each may be a relevant
factor and one among several factors.
c. Backward class must be both socially and educationally backward,
not either socially or educationally backward.
d. Reservation shall not be in excess of 50%.
e. Reservation cannot be made at the cost of administrative efficiency.24
The people who are appointed must be able to discharge their duty
properly.
In light of these guidelines, reservation exclusively on the basis of
economic criteria cannot be held to be valid. The economically backward
people which belong to upper castes can be called educationally
backward, but they are not socially backwards, and hence, are not
eligible to get the reservation benefit, as per the decisions of the
Supreme Court.
The reservation will also become excessive. In the case of Balaji v. State
of Mysore,25 the ceiling limit for reservation was fixed at 50% by the
Supreme Court. In another case of Arati Ray Choudhary v. Union of
India,26 the Court unequivocally stated that “the reservation for
backward communities should not be so excessive as to create a monopoly
or to disturb unduly the legitimate claims of other communities.” The
same was reiterated in the Mandal Commission case, wherein the court
23 Jain, supra note 11. 24 Proviso to Article 335 of the Constitution of India, 1950 25 Balaji v. State of Mysore, AIR 1963 SC 649. 26 Arati Ray Choudhary v. Union of India, AIR 1974 SC 532.
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said that the total reservation shall not exceed 50% in any one year. In
India, 15% reservation is provided to the Scheduled Castes (SCs), 7.5%
to the Scheduled Tribes (STs) and 27% to the Other Backward Classes
(OBCs), amounting to a total of 49.5% reservation. Now, adding 10%
reservation for the economically backward classes, the total percentage
of reservation will reach 59.5%, thereby breaching the limit determined
by the Supreme Court, and this high percentage of reservation will deny
the reasonable equality of opportunity to the unreserved classes.
The Supreme Court emphasised in K.S. Jayasree v. State of Kerala27
that “Poverty or economic standard is a relevant factor in determining
backwardness, but cannot be sole determining factor.” In 1991, the
Narasimha Rao-led Government had proposed a 10% reservation for the
economically backward sections, i.e. for the people who were not covered
under any existing reservation scheme. This reservation was challenged
in the case of Indra Sawhney v. Union of India,28 wherein the Court
rejected the reservation of 10% posts in favour of “other economically
backward sections of the people who are not covered by any existing
schemes of reservations”. The Court said that
… such a category cannot be related to Article 16(4). If at
all, it can be related to Article 16(1). Even so, the court could
not sustain it. Reservation of 10% vacancies among open
competition candidates on the basis of income/property-
holding means exclusion of those who are above the
demarcating line from those 10% seats. It is not permissible
to debar a citizen from being considered for appointment to
an office under the state solely on the basis of his income or
property-holding. Any such bar would be inconsistent with
the guarantee of equal opportunity held out by Article
16(1).29
27 K S Jayasree v. State of Kerala, AIR 1976 SC 2381. 28 Indra Sawhney v. Union of India, AIR 1993 SC 477. 29 Id.
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Recently, in 2016, the Gujarat government came up with an Ordinance
to provide reservation to the economically weaker classes of the
unreserved categories in the educational institutions in the state and of
appointments and posts in the services under the state. This was
challenged before the Gujarat High Court in the case of Dayaram
Khemkaran Verma v. State of Gujarat.30 The High Court quashed the
Ordinance, citing the previous cases of Supreme Court, which say that
reservation cannot be granted solely on economic basis.
In the light of these precedents and the various guidelines given by
Supreme Court in different cases, it seems that the reservation policy
for the economically weaker sections will fail the test laid down by the
Supreme Court. The previous stand of the Supreme Court has been
against reservation for the economically weaker classes. This will be a
big hurdle in the way of proving the constitutionality of the 103rd
Amendment, which has already been challenged before Supreme Court.
V. 103RD CONSTITUTIONAL AMENDMENT
The present BJP Government made a historical move by passing the
124th Constitutional Amendment Bill, thereby making reservation for
the economically weaker classes a reality. This Amendment was passed
by the Parliament in just two days. On January 18, 2019, it was passed
by the Lok Sabha, and the very next day, the Rajya Sabha also passed
it. It became one of the fastest passed constitutional amendments. The
Bill was introduced and passed hastily and hurriedly, with little
discussion and deliberation. A heated debate of 4-5 hours took place in
both the Houses, and the opposition parties alleged that the government
is passing it hastily in order to woo the general public a few months
before the general election. But, at the end, all the parties supported the
Bill, and it became a law. Some called it a politically motivated attempt
to get the support of the general category voters, while others believe
that it is a social welfare legislation aimed at uplifting those in poverty.
30 Dayaram Khemkaran Verma v. State of Gujarat, WP(PIL) 108/2016.
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The 103rd Constitutional Amendment Act31 provides for 10% reservation
for the economically weaker classes of people, who are not presently
covered by any existing schemes of reservations. The reservation will be
provided in educational institutions, including private educational
institutions, and in public sector employment. The amendment has
added Article 15(6) and 16(6) to the Constitution.
Article 15(6) states that:
(6) Nothing in this article or sub-clause (g) of clause (1) of
article 19 or clause (2) of article 29 shall prevent the State
from making,—
(a) any special provision for the advancement of any
economically weaker sections of citizens other than the
classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any
economically weaker sections of citizens other than the
classes mentioned in clauses (4) and (5) 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, which in the case of reservation would be in
addition to the existing reservations and subject to a
maximum of ten percent of the total seats in each category.
Explanation.— For the purposes of this article and article
16, "economically weaker sections" shall be such as may be
notified by the State from time to time on the basis of family
income and other indicators of economic disadvantage.32”
Article 16(6) states:
31 The Constitution (One Hundred and Third Amendment) Act, 2019. 32 Article 15(6) of the Constitution of India, 1950.
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“(6) Nothing in this article shall prevent the State from
making any provision for the reservation of appointments
or posts in favour of any economically weaker sections of
citizens other than the classes mentioned in clause (4), in
addition to the existing reservation and subject to a
maximum of ten per cent of the posts in each category.33
Article 15(6) provides for reservation in educational institutions, and
Article 16(6) provides for reservation in employment.
The implementation of this scheme seems to be a difficult and hectic
task. There are no fixed parameters for educationally backward classes.
The government has drawn the criteria for economic weakness in such
a way that almost all Indians appears to be in the purview of this
reservation policy. “The families having annual financial income less
than 8 lacs will be eligible for reservation. Other parameters being that
the maximum area of agricultural landownership is not to be above 5
acres. The area of house should not be larger than 1,000 sq. ft. These
parameters seem to cover almost 95% of Indian households.”34 In such a
situation, how will this policy be able to benefit anyone?
There is no effective way to keep a check on the property and income of
people in India. Many people make fake documents for property and
income to evade taxes. And the problem is that obtaining fake income
certificates is very easy in India; so, how will the government stop these
fraudulent claims? No proper method for the implementation of this
scheme has been given by the government. This policy seems to be a
mere lip service. Further, the public sector in India is not generating
sufficient jobs; providing for reservation without creating adequate
opportunities will do no good to anyone.
33 Article 16(6) of the Constitution of India, 1950 34 Anirban Bandyopadhyay, General Category Quota: Why Reservation Delivers Little
Concrete Benefit, THE ECONOMIC TIMES (Jan. 9, 2019, 6:12 AM),
https://economictimes.indiatimes.com/news/politics-and-nation/upper-caste-quota-
why-reservation-delivers-little-concrete-benefit/articleshow/67444143.cms.
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The Amendment has many glitches which makes it inconsistent with
the rules laid down by the Supreme Court regarding the reservation
policy. Whether it is breaching the total cap of 50% or that economic
criteria cannot be the sole factor for reservation, the amendment
violates all the rules. The Act has already been challenged before the
Apex Court. There are high chances that the Supreme Court will declare
it as unconstitutional. But in the past, there have been a number of
instances wherein the Supreme Court has changed its own stance on the
same issue with the changing needs of the society. As the society
progresses, laws also develop. The fate of this Amendment is in the
hands of Apex Court now.
VI. CONCLUSION
The policy of reservation or protective discrimination has always been a
matter of controversy in our country. The policy which was taken up
initially for just 10 years to uplift the historically disadvantaged classes
has continued to invade India even after seventy years of independence.
Reservations benefits are not actually reaching the people who are in
real need. The policy of reservation has failed miserably in our country,
and today, it has become just an agenda for political parties to woo
general public in order to keep their vote banks intact.
The 103rd Constitutional Amendment appears to be one more such
political agenda with no methods for implementation put in place. The
nation overall is still poor, with financial strength gathered in the hands
of a few. Also, an economic criterion that applies to a large part of the
populace being the reason for reservation for 10% is ludicrous. In
addition, the public sector is failing to produce more job opportunities.
This implies the amount of employment under this reservation will be
pathetically low, and the rivalry for them staggeringly fierce. The
situation of the poor in India is deteriorating day by day. The need of
the hour is to come up with a strong policy with proper implementation
techniques so that the benefits reach even the last person standing in
line. Already, there are innumerable policies for the upliftment of the
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poor, but their lack of implementation is what takes the game away from
our hands.
With such policies in place, the reservation for the economically weaker
sections does not seem to be viable. Instead of reservation, there are
more options like scholarships for students and generating more
employment opportunities for the youth. If the government wants to
give reservation to the poor, it must be within the cap of 50% prescribed
by the Supreme Court, and a proper implementation with bona fide
intention.
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ANTI-TRAFFICKING BILL: A SIREN’S SONG
Aarvi Singh & Swantika Kumar Rajvanshi†
ABSTRACT
The halo effect of law is the assumption that it is
rational and heuristically applicable on some sets of
problems, but even a law can be misapplied,
misconstrued or miscoded. One such mis-coded law
that has been framed from the perspective of neo-
conservative morality is the Trafficking of Persons
(Prevention, Protection and Rehabilitation) Bill,
2018. The Bill ensnares many flaws and is bound to
adversely affect the stakes at hand.
Although the Bill aims at incarcerating offenders
involved in trafficking, yet it also sweeps in innocent
victims and sex workers because of its ill-fitted
definition of aggravated trafficking, and an
asymmetric inclination towards penalisation rather
than rehabilitation. The Bill seems to be the poster
child for the violation of the fundamental rights
engrained in the Constitution of India. It
fundamentally destroys the essence of Articles 21,
23 and 19 of the Constitution, and it sterilizes
human rights in the name of rescue and raid, and
the provisions related to reparation is indeed
couched in such words that it will be misused;
further, it trespasses the natural law principles of
equity and fair trial.
The paper highlights the analysis of the Bill, and the
unconstitutional and in-humanistic loopholes
prevalent in it; and also underlines the changes that
this Bill necessitates to be legitimate.
† The authors are 3rd year B.A. LL.B. (Hons.) students at the Rajiv Gandhi National
University of Law, Punjab. The authors may be reached at [email protected]
and [email protected], respectively.
INDIAN CONSTITUTIONAL LAW REVIEW
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I. INTRODUCTION
When distinction between immoral and illegal seemingly blurs, the law
becomes a coercive conservative apparatus supplementing the needs of
those moralists who have supported such law. A vindication of human
rights makes no good law and it immunizes the principles of equity and
justice. The old Latin maxim aequitas sequitur legem, meaning equity
follows the law, is no more recognized in India. The impeccability of
equity remains untainted with unreasonable law and the practice of
courts has established that equity does not toe the lines of the law if the
law does not follow justice and public convenience;1 yet, time and again,
we encounter hasty legislations that are devoid of the principles of
equity and justice. Such hasty legislations create adverse conditions for
the people who might be affected by such law. The Trafficking of Persons
(Prevention, Protection and Rehabilitation) Bill, 2018 is one such
legislation which, if passed by the Parliament, will penalise many
innocent stakeholders.
The term trafficking of persons is defined as:
The recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability or of
the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for
the purpose of exploitation.2
The Global Slavery Index, 2016 reported that there were at least 18.3
million people trapped in this global menace, that is considered to be
1 CHARLES E. PHELPS, JURIDICAL EQUITY: ABRIDGED FOR THE USE OF STUDENTS 327
(M. Curlander 1894). 2 Protocol to Prevent, Suppress and Punish Trafficking in Persons supplementing the
United Nations Convention against Transnational Organized Crime, art. 3(a), Nov.
15, 2000, 2237 U.N.T.S. 319.
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modern slavery in India.3 In pursuance of combating the illicit threat of
the rapidly escalating phenomenon of human trafficking, the Trafficking
of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was
introduced in the Parliament in July, 2018. It was drafted by the
Ministry of Women and Child Development, in consonance with India’s
international obligations. The Bill is an appealing and alluring piece of
legislation, but in actuality, it is just an addition to the already
fragmented landscape of laws on human trafficking, exposing
vulnerable communities to a draconian punitive overkill.
Lon Fuller’s directory on law-making advocates non-retroactivity,
perspicuity, non-contradiction, generality, publicity, constancy, and
congruity4 as the characteristics of any law, and the Anti-Trafficking
Bill fails many of these tests. The Bill is just another failure of the
Indian legislature to understand societal requirements. The bulk of the
law can be put into three baskets in observance of the intention behind
the Bill and what it is trying to address, i.e. prevention, prosecution and
protection. The victim-centric model tries to counter human trafficking
from a pre-rescue, rescue and post-rescue perspective.5 The Bill has four
categorical flaws in line with Fuller’s catalogue:
a. It is contradictory to international law principles;
b. It is not congruent to the existing laws of the land dealing with
trafficking;
c. It lacks clarity; and
d. Factions of denizens are against the legislation as it fails to consider
their demands.
The constitutional provisions of liberty, freedom of choice and freedom
of movement are breached by the Bill, as it creates unauthorised
3 Walk Free Foundation, 2018 Findings - Country Studies: India, THE GLOBAL
SLAVERY INDEX, https://www.globalslaveryindex.org/2018/findings/country-
studies/india/. 4 LON FULLER, MORALITY OF LAW 39-90 (Rev. ed. Yale University, 1969). 5 Divya Trivedi, Drafted in a Vacuum, 35(19) FRONTLINE 119-120 (2018).
INDIAN CONSTITUTIONAL LAW REVIEW
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restrictions on women from earning and opting for the professions of
their choices.
II. LEGAL CONUNDRUMS
One of the many shortcomings of this Bill is that it, in its entirety, covers
provisions regarding trafficking for the purpose of sexual exploitation,
but the same is nowhere defined. It relies on Section 370 of the Indian
Penal Code, 1860 to define and establish that an offence of trafficking of
persons has been committed. In order to try offences under this Bill, the
prosecution will initially have to prove the pre-conditions specified
under Section 370, only then will the provisions of this Bill take effect.6
Where there was no dearth of law governing trafficking, this Bill is only
a compensation for the failure of the preceding legislations in curbing
the problem of human trafficking. The narrative behind having a new
anti-trafficking law is to fill the lacunae which the existing laws had left
in their wake. However, the current Bill is only a repetition of what has
already been dealt with in the Immoral Trafficking of Persons Act, 1986,
the Indian Penal Code, 1860, the Juvenile Justice (Care and Protection
of Children) Act, 2015, the Child Labour (Prohibition and Regulation)
Act, 1986, the Bonded Labour System (Abolition) Act, 1976, the
Information Technology Act, 2000, the Transplantation of Human
Organs Act, 1994, the Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979, and many others.
The need of the hour is a comprehensive law which can harmonize the
different approaches and integrate the objectives of the existing
legislations. On the other hand, the Anti-Trafficking Bill, under Section
59, proposes ultimate overriding power of this legislation over any law
inconsistent with its provisions.7 Instead of granting clarity, this piece
6 Tripti Tandon, Does the Anti-Trafficking Bill Address Trafficking, THE HINDU, Oct.
18, 2018, https://www.thehindu.com/opinion/op-ed/does-the-anti-trafficking-bill-
address-trafficking/article24646941.ece. 7 Section 59 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018.
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of legislation puts the entire existing legal framework regarding
trafficking in a chaotic turmoil, which, if enacted, would be in a dire need
of judicial construal. It has created a multiplicity of legal regimes –
Section 5 of the Immoral Trafficking Prevention Act, 1986 prescribes a
punishment of imprisonment between three and seven years and a fine
up to INR 2000 for procuring of humans for the purpose of prostitution
with or without their consent,8 and Section 370 of the Indian Penal Code
proposes a minimum of seven years of imprisonment for a similar
offence.9 Instead of synchronizing the provisions of both these laws, the
Bill just adds fuel to the fire by constructing more incomprehension.
III. FAILURE OF HUMANISTIC CRIMINOLOGY
Another anomaly in its drafting is the clubbing of an assortment of
offences under the head of the aggravated form of trafficking,10 one such
offence included in this new category, is — “encouraging or abetting any
person to migrate illegally into India or Indians to some other country”11
— which has a minimum punishment of ten years.12 This stipulation
undermines the right to migrate to and from any country, and conflates
trafficking and smuggling. It disregards the disparity between illegal
trafficking and standard migration opportunities. It confuses human
trafficking with the smuggling of migrants, which can lead to the
stigmatization of migrants and all the people involved in the process.13
8 Section 5 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018. 9 Section 370 of the Indian Penal Code, 1860. 10 Section 31 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018. 11 Section 31(xi) of the Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2018. 12 Section 32 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018. 13 Bandana Pattanaik & Leah Sullivan, India's Anti-Trafficking Bill Ignores Socio-
Economic Realities of Trafficked Persons, 53(28) ECONOMIC & POLITICAL WEEKLY,
Jul. 14, 2018, https://www.epw.in/rethinking-2018-trafficking-bill.
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The Bill suffers operational deficiencies and inconsistencies, as, on the
face of it, the Bill covers trafficking of bonded labour and forced labour,
but the spirit of sensitisation of labour reforms found in the addressing
of extreme exploitation under the Bonded Labour System (Abolition)
Act, 1976 is overlooked, which shows a carceral approach by the
legislature. The Anti-Trafficking Bill requires perceiving a labour-
sensitive approach to conceptualize trafficking and labour rights on the
pretext of the existing ground realities in the context of India. It is
essential for the government to create an interwoven legislation, which
addresses the social evil of human trafficking as well as bonded and
forced labour, as these offences are an end result of each other because
of which thousands of labourers are suffering every day. Since the
government is planning a consolidation of labour reforms, it is necessary
to merge the laws such as the Bonded Labour System (Abolition) Act,
1976 (Bonded Labour Act), the Contract Labour (Regulation and
Abolition) Act, 1970 (Contract Labour Act), the Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act,
1979, the Children (Pledging of Labour) Act, 1933 and the Child and
Adolescent Labour (Regulation and Prohibition) Act, 1986 into the ambit
of the Anti-Trafficking Bill; otherwise, it will remain a skeletal law
without any flesh.14
The principle of legality has been the foundation stone for the centuries
old criminal justice system, and is an imperative instrument of
international criminal law. One of its fundamentally significant
components is the principle of certainty, derived from the Latin maxim
nullum crimen sine lege stricta. It postulates that criminal conduct
should be defined in such a precise manner that, through precedential
assistance, its qualifications can be explained as an offence which is
comprehensible to the population. But Section 36 of the Bill provides a
vague and indistinct elucidation for the offence of promotion and
facilitation of the trafficking of persons, which includes in its ambit any
14 Nalini Nayak, Anti-Trafficking Bill 2018 Fails to Address Changing Forms of
Labour Exploitation, 53(29) ECONOMIC & POLITICAL WEEKLY, Jul. 14, 2018,
https://www.epw.in/engage/article/anti-trafficking-bill-2018-severely.
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form of advertising, publishing, printing, broadcasting, or distribution
of any informative material or propaganda for the promotion of
trafficking.15 This provision is a clear and comprehensive violation of the
principle of legality due to its amorphous and ambiguous language, as it
can be enforced against a wide range of people not engaging in or
facilitating trafficking in any way. Since sex work and trafficking are
two conflicting terminologies, this provision could be abused for
incriminating sex workers and identifying them as victims of trafficking.
IV. FAULT OF PRESUMPTIONS
The right to liberty and free trial are universally recognised
fundamental rights based on the approach of human rights preached by
the Universal Declaration of Human Rights, 1948 and the International
Covenant on Civil and Political Rights, 1976. These are customary
international rules aimed at ensuring the proper administration of
justice. These rights have also been recognised by the Supreme Court of
India as an elementary part of the Indian criminal jurisprudence.16 They
include in their domain the right to a legal counsel, the presumption of
innocence, the burden of proof on the prosecution, etc. India, under
Article 51 of the Constitution, is bound to follow these international
obligations, but the draft Bill, while trying to establish a purely criminal
approach, results in potentially jeopardizing the rights of accused
during trial, such as the presumption of innocence, the burdens and
standards of proof, and the right of appeal.
Section 17 of the Bill empowers the police to remove and rescue people
from premises when they believe there is imminent danger that may
cause harm to his life and person.17 The Bill provides little to no room
for the victims identified from the rescue raids of the establishments of
15 Section 36 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018. 16 Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367. 17 Section 17 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018.
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sex workers to get any aid or assistance from any agency regarding their
situation or to consent to being rescued. Such interventions are usually
the leading factors for the abuse faced by sex workers by the police in
their custody. According to the World Health Organization (WHO) and
the Global Coalition on Women and AIDS, “in several countries certain
activities such as rescue raids of sex establishments have exacerbated
violence against sex workers and compromised their safety”.18 In 2015, it
was reported by the High Level Committee on the Status of Women set
up by the Ministry of Women and Child Development that the rescue
and rehabilitation provisions under the Indian criminal laws are based
on a moralistic approach towards sex work, which results in widespread
abuse of human rights.19 The Bill makes no indication regarding the
rights of the individual to access legal representation or have any
communication with their family, which is a gross violation of the rights
of a detained person or a person in custody.
Section 20 of the Bill automatically shifts the burden of proof and
presumes the guilt of the person who is prosecuted for committing any
offence under this Bill, specifically in respect of a child or a woman or a
person suffering from any mental or physical disability. This Section is
in violation of the customary international law which states that it is
the right of the accused to be presumed innocent until convicted in
accordance with the law qualifying the minimum requirements for
fairness and equality. It is a characteristic feature of the rule of law and
the principles of natural justice. Although the prerequisites of burden of
proof are not explicitly mentioned in the International Covenant for
Civil and Political Rights or the UDHR, the European Court of Human
Rights and the African Commission have implied that the presumption
18 WHO and the Global Coalition, Women and AIDS, Violence Against Sex Workers
and HIV Prevention, Violence Against Women and HIV/AIDS: Critical Intersections,
WHO INFORMATION BULLETIN SERIES: NUMBER 1, 2005,
https://www.who.int/hac/techguidance/pht/InfoBulletinIntimatePartnerViolenceFinal
.pdf. 19 Ministry of Women and Child Development, REPORT OF HIGH-LEVEL COMMITTEE
ON STATUS OF WOMEN, at 1197-1198 (2015).
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of innocence requires the prosecution to prove guilt beyond reasonable
doubt for an accused to be convicted.
Similarly, Section 34 and 35 of the Bill provide that the burden of proof
would lie on the ones managing the premises or the closure of premises
where trafficking occurs, and they need to prove that they exercised due
diligence and that trafficking was not occurring on their property. At the
same time, the offences mentioned under the Bill are cognisable, non-
bailable and punishable with high, often minimum, mandatory
sentences including life imprisonment.
V. BUREAUCRATISATION
A hierarchical order of anti-trafficking committees has been created
under the Bill, as an uncharacteristic amount of diligence has been
contributed to streamlining a maze of bureaucratisation to grant care
and protection. Three bodies have been introduced, hierarchically – the
National Anti-Trafficking Relief and Rehabilitation Committee,20 the
State Anti-Trafficking Committees,21 and the District Anti-Trafficking
Committees22 – that have institutionalised the protective and
precautionary steps towards curing trafficking. In addition, when
Section 13 of this Bill is read in conjunction with the provisions of
Section 21, there is a risk of conflation of executive and legislative
powers by the District Anti-Trafficking Committee, which is against the
fundamental doctrine of separation of powers.
This lack of clear delineated roles and responsibilities within these units
could lead to confusion and chaos in recognizing the required centralized
procedure for functioning. In addition to that, none of the recommended
bodies have any representation from the communities which are
20 Section 11(1) of the Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2018. 21 Section 12(1) of the Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2018. 22 Section 13 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018.
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essentially being affected, and whose involvement and perception is
imperative for addressing the nuisance that is human trafficking. This
is not only an action of blatant ignorance on the part of the legislature,
but is a barefaced disobedience of the recommendations given by the
panel appointed by the Supreme Court.23
VI. LAW THAT IS MADE BY ‘KING REX’
Taking a criminal law approach to a human rights issue,24 the Bill is
merely a unfortunate compilation of provisions of trafficking related
issues from various other enactments. The Bill carries on its shoulder
the liability to incriminate the wrong-doer, as the provisions under it are
dedicated more towards search and seizure,25 and investigation and
punishment. Issues like rehabilitation of the victim, shelter home care
and functioning, safety and reparation of victims are wrapped up in
mere twelve (out of fifty-nine) provisions of the Bill. At the same time,
the Bill does not address any concept of funding or compensation for the
victims, and solely relies on the establishment of protection homes and
rehabilitation centres. Protective measures such as cash assistance,
housing requirements, education of children and livelihood support that
are included in the policies for the victims of bonded and forced labour,
are missing for the victims of trafficking in the proposed Bill. The
recommended rehabilitation fund lacks financial obligation, and is just
an empty platitude.
The evolution of civilisation has witnessed the dehumanisation of sex
workers: fallen women, ladies of the evening, loose women are some of
23 Tripti Tandon, India's Trafficking Bill 2018 is Neither Clear Nor Comprehensive,
53(28) ECONOMIC POLITICAL WEEKLY, Jul. 14, 2018,
https://www.epw.in/engage/article/trafficking-of-persons-prevention-protection-and-
rehabilitation-bill-2018-is-neither-clear-nor-comprehensive. 24 Press Release, India must Bring its New Anti-Trafficking Bill in line with Human
Rights Law, urge UN Experts, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH
COMMISSIONER,
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23392&La
ngID=E. 25 Section 15 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)
Bill, 2018.
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the terminologies used to address them, and these phrases reflect the
moral deprivation that the society has attached to them. Many works
portray sex workers as non-virtuous or sinful, for example, the Biblical
character of Gomer in the book of Hosea was an adulteress;26 Phyrne27
from Greece was charged with impiety and Hypereides defended her
case. This legacy of imputing immorality with the sex business can be
traced in the bare provisions of the Bill.
A major flaw of the Bill is the preposterous presupposition of the
synonymy of trafficking with sex commerce. The difference between sex
enslavement and sex commerce has been clearly omitted in the Bill.
Similar misunderstandings have plagued the judicial system as well in
the case of Gaurav Jain v. Union of India, wherein it erroneously noted
that “to recognize prostitution as a legitimate means of livelihood would
be an open invitation to trafficking in women which is shunned
internationally and in all the civilized nations of the world”.28 In the case
of Budhadev Karmaskar v. State of West Bengal,29 the Supreme Court
appointed an expert panel for consideration of any potential reforms
required for the establishment of a community-based rehabilitation of
trafficked victims, as it held that even prostitutes had the right to live
with dignity, but the Bill has turned a blind eye to these
recommendations.
The legislation is enacted with a myopic view towards sex commerce;
rather than aiming at protecting sex workers, it focuses on curbing their
occupation, thus allowing the perpetuation of systematic castration of
sex workers. The legislative cradle creates a vacuum for the notion of
decisional autonomy. Victims, in case of human trafficking, are
predominantly women and children, but that does not mean that every
26 JAMES L. MAYS, HOSEA: A COMMENTARY 49 (Westminster John Knox Press, 1969). 27 Craig Cooper, Hyperides and the Trial of Phryne, 49(4) PHOENIX 303–318, 1995,
https//:www.jstor.org/stable/1088883. 28 Gaurav Jain v. Union of India, (1997) 8 SCC 114. 29 Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283.
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woman in sex commerce is a victim – some have voluntary chosen it30 as
a means for earning. Labelling of all women as victims in sex trade,
either because of coercion or circumstances, is a reinforcement of the
stereotypes that a woman can never freely opt for transactional sex. A
woman, therefore, remains a conglomeration of social morals and
feminine values, and any deviation from the established mores debases
her femininity; this patriarchy-based social behaviourism has robbed
sex workers of their basic human rights. This assessorial behaviour has
been used to outline the moral compass used for criminalising sex
workers. There exists no causal relationship between voluntary sex
commerce and trafficking; thus, there is an absence of legal causation
for imputing liability on them. Martha Nussbaum’s capability
approach31 measures the quality of life in any nation and it states that
the degree of holistic development of an individual cannot be adjudged
by the availability of opportunities, but by the capability to utilise those
opportunities. There cannot be limiting of choices over the occupation a
person wants when the right to choose is protected by the fundamental
rights under the Indian Constitution, and this neo-regulationist group
considers voluntary sex services as legitimate labour.32
The legitimacy of the sanction over sex transactions forces the parties to
find different routes to carry on their business. This causes multiple
problems, such as (i) lack of a safe work environment, leading to sex
workers soliciting work via massage parlours, salons, online services,
etc., (ii) lack of safe and secure bargaining power, and (iii) increased
dependency upon intermediaries for income. This absence of a safe
30 INE VANWESENBEECK, SEX WORKERS’ RIGHTS AND HEALTH THE CASE OF THE
NETHERLANDS: GLOBAL PERSPECTIVES ON PROSTITUTION AND SEX TRAFFICKING 3-25
(Lexington Books 1997). 31 M.C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH
60-80 (Cambridge University Press 2000). 32 Saunders, Penelope, Traffic Violations: Determining the Meaning of Violence in
Sexual Trafficking Versus Sex Work, 20 JOURNAL OF INTERPERSONAL VIOLENCE 343,
360 (2005).
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workplace further aggravates health problems, while right to health33 is
a fundamental right recognised under Article 2134 of the Constitution.
The question remains as to whether such rights have some intrinsic
importance or if they just have instrumental relevance.35 In case of sex
workers, these rights are merely ornamental in nature, serving no
actual purpose or protection. The non-recognition of sex work as a
business disfavours the proper implementation of contracts and its
related benefits. Further, the illegality perpetuates divestments as the
operators are cauterized as criminals for exploiting prostitutes and
living on their earnings, irrespective of the nature of treatment provided
to the workers.
Due to the error in the Bill, even before the filing of a civil or criminal
suit against involuntary sexual enslavement, the victims might get
embroiled in a legal battle to absolve themselves from a guilt that never
existed. A case similar to this hypothesis took place in the USA: the El
Monte case of 1995,36 where the Thai workers, after being rescued from
the duplexes of El Monte, were fighting against another set of ordeals to
free themselves from the legal battle as they were transported to the
Immigration and Naturalisation Services.
A recent study by the organisations SANGRAM and VAMP showed that
of the 243 women who were picked up as part of raid and rescue actions
in Maharashtra, an overwhelming majority, i.e. 193, were adults and
doing sex work of their own volition. They were put in rehabilitation
homes without their consent. The detrimental and sometimes fatal
consequences of these raids are apparent, as in a case in April 2019,
33 People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Bandhua
Mukti Morcha v. Union of India, AIR 1984 SC 802; Paschim Banga Khet Mazdoor
Samity v. State of West Bengal, AIR 1996 SC 2426. 34 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 35 Amartya Sen, Fertility and Coercion, 63 CHICAGO L. REV. 1035–62 (1996). 36 DAVID DIAZ AND MARTA LÓPEZ-GARZA, ASIAN AND LATINO IMMIGRANTS IN A
RESTRUCTURING ECONOMY: THE METAMORPHOSIS OF SOUTHERN CALIFORNIA 27 (1st ed.
2002).
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where two sex workers lost their lives while attempting to flee a police
raid.37
The Bill propagates that vulnerability means the lack of autonomy, and
creates a constitutional roadblock; while attempting to uphold Article
23, the provisions in it violate Article 21, i.e. the right to life of adult
consenting sex workers. The Bill is a reinforcement of the same old
ideology of rescue and rehabilitate, but what about what lies ahead?
Legislative revision is a prerequisite before this Bill becomes an Act, as
countless factions of the society will be affected. The Bill may not be
ideal, but with the relevant corrections, it could be a potential deterrent
against trafficking, and could save millions of lives. But time is of
essence as data available from the National Crime Records Bureau
indicates that there were 8,132 reported cases of human trafficking
across India in 2016.38 The International Labour Organisation has
expanded the definition of workers by incorporating all forms of work or
arrangements at all workplaces, including persons in any employment
or occupation.39 This definition recognises the labour done by sex
workers, and India needs to bring this legislation at par with
international standards. A proper scrutiny by a Standing Committee
should be a pre-condition. Article 5140 deals with promotion of
international peace and harmony, and it entails respect for
international treaties and obligation. The Bill violates the United
Nations Convention against Transnational Organized Crime and the
37 S. Anasuya, Experts Oppose Proposed Anti-Trafficking Bill, Ask for It to Be Sent to
Standing Committee, THE WIRE, Jul. 19, 2018, https://thewire.in/rights/experts-
oppose-proposed-anti-trafficking-bill-ask-for-it-to-be-sent-to-standing-committee. 38 Ministry of Home Affairs, Crime in India 2016 Statistics, NATIONAL CRIME
RECORDS BUREAU, at 512, 518,
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20Indi
a%20-%202016%20Complete%20PDF%20291117.pdf. 39 International Labour Office, RECOMMENDATION CONCERNING HIV AND AIDS AND
THE WORLD OF WORK NO. 200 (2010),
http://www.ilo.org/public/english/region/eurpro/mos- cow/info/publ/wcms_142706.pdf. 40 Navtej Singh Johar and Ors. v. Union of India and Ors., AIR 2018 SC 4321;
National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438.
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inclusive UN Trafficking Protocol, and is thus, against the international
obligatory standards.
Autonomy is sine qua non for reproductive justice, but the moral
economy places hurdles when a woman makes the choice of earning by
renting her womb. This labour-remuneration model is seen as a
defilement of her dignity and integrity. Neo-conservatism raises ethical
and moral concerns over commercial surrogacy, and these concerns
converge into regulations or laws with punitive consequences to
women’s rights over her reproductive freedom.41 This Bill reinforces
heteronormativity by placing a complete ban on commercial surrogacy.42
Penalisation of every facet of surrogacy may not be interpreted as an
inherent abuse of human rights, as it is a mode of exploitation, but the
underpinnings are such that it denies the earner a meaningful mode of
earning. The disproportionate economic status of men and women leave
little or negligible opportunities for women to contribute to the economic
landscape. The routes to economic empowerment can be many, and
opting to be a surrogate is one such route. Blurring the distinction
between women trafficked to be surrogates and women who voluntarily
opt for it, by not expressing the latter in the Bill as exclusionary, will
create a problem in the future.
VII. CONCLUSION
The normative jurisprudential question on the nature of law lies in lex
aliquando sequitur aequitatem, implying that law follows equity; but the
Bill is simply a piece of legislation contrary to this aphorism. The
purpose of any public policy is to enhance the public sphere, but if any
policy demands the surrender of reproductive capabilities43 in name of
protection and rehabilitation, then this policy serves no purpose. The
policy will ultimately be fatal for the victims, as the scorch of raid creates
41 Sen, supra note 35, at 1035. 42 Section 31(3) of the Trafficking of Persons (Prevention, Protection and
Rehabilitation) Bill, 2018. 43 Nussbaum, supra note 31, at 94.
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fear and insecurity, and the severity of the law does not guarantee the
security of victims, but rather perpetuates their vulnerability.
The Bill should protect the interests of sex workers by categorising their
work as an occupation. Further, in case a woman does not want to leave
her profession, it must ensure protection at work and proper health
coverage. In case of surrogacy, the complete ban should be substituted
with proper regulation. The moral-cultural nexus cannot create a law
that forces a section of the citizens to accept stereotypical rightlessness
as their status. The constitutional front needs to be addressed by the
Bill, and the makers must take into consideration the guidelines of the
honourable Supreme Court as well as the relevant international
treaties. The Indian Constitution has many safeguards protecting the
rights of individuals. The Bill attempts to transgress the vigour of the
Constitution, and this unauthorised attempt must be restricted. The
spirit of Lon Fuller is possibly traumatized at the quandary that such a
hasty enactment might entail the determination of the fate of many
innocent and helpless human beings. Law remains a quagmire for many,
but this time it may become a quarantine for some.
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THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION:
A COMPARATIVE ANALYSIS OF THE INDIAN LAWS AND THE
U.S. FIRST AMENDMENT
Aditi Singhal†
ABSTRACT
Freedom of Speech and Expression is a right that has
seen centuries of struggles by various citizens across
nations before gradually being recognized as a right.
While this right is not absolute, and has restrictions
in various parameters ascribed by law, there is an
increasing need to revise whether such restrictions
are actually necessary and justified.
This paper looks at the different challenges posed to
the doctrine of free speech under the Indian
Constitution, and gives a comparative analysis
between the Indian and the American jurisprudence
on the same. It attempts to unearth and articulate
the legal interpretations of the three primary
challenges to this doctrine, which are – the
incitement of illegal offences like sedition, compelled
speech, and sexist as well as sexually oriented
speech. Unsatisfied with the judicial interpretation
of these limitations, the paper goes on to suggest
different tests for these three instances, which the
author believes would ensure a proper balance
† 4th year B.A. LL.B. student at Jindal Global Law School.
The author is grateful to Prof. Mark Rosenbaum, Visiting Faculty of Law, Peking
University, School of Transnational Law, for his continuous guidance and support.
This paper was originally a part of the course: “Issues of Free Speech and the First
Amendment”, which was offered by Prof. Rosenbaum at Peking University, School of
Transnational Law.
The author is also grateful to Mr. Anujay Shrivastava, Mr. Jayant Malik and Mr.
Kaustubh Kapoor, 4th Year B.A., LL.B. students at Jindal Global Law School, for
their valuable feedback and review. Any errors remain solely her own.
INDIAN CONSTITUTIONAL LAW REVIEW
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between the act of reasonably limiting the scope of
the right and the right itself.
Finally, the author proposes a model of free speech,
which can balance both the benefits of free speech
and the need for restrictions, if any, by the State,
while trying to address contemporary difficulties
within the legal-constitutional realm.
I. PURPOSE AND AIM
Through this paper, the author aims to look at certain issues that
concern the Indian society, with respect to the right to freedom of speech
and expression, as guaranteed under the Indian Constitution.1 The
paper focuses on how these restrictions pose a threat in a democratic
and free society, where the people are guaranteed the right to voice their
concerns, opinions, critiques, and the like.
Part II of the paper will first introduce the concept of free speech as
understood under the Indian Constitution. Subsequently, the paper
shall focus on three of the many issues which pose a threat to the free
speech doctrine. Part III shall discuss these three issues from the Indian
constitutional perspective. Once the Indian context is understood, Part
IV of the paper shall shift from the Indian legal perspective, and explain
how the United States’ laws look at free speech,2 and how the First
Amendment3 differs from the Indian jurisprudence. Lastly, in Part V,
the paper proposes a model theory of free speech which can be adopted
by the government, keeping in mind both the benefits of free speech and
the need for restrictions, if any.
1 Constitution of India, 1950. 2 U.S. CONST. art. I. 3 U.S. CONST. amend. I.
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II. FREEDOM OF SPEECH AND EXPRESSION IN THE
INDIAN CONTEXT
Part III of the Constitution of India4 deals with the fundamental rights
for the citizens of India, which are guaranteed to them. These rights
cannot be violated by the state, unless it is done in the manner provided
by the Constitution itself. Article 19(1)(a) of the Constitution5 secures
the right to freedom of speech and expression to every citizen. It
guarantees the people the liberty to express their views, opinions, and
beliefs. However, such freedom, in no way whatsoever, equates to the
right to say whatever one likes, whenever and wherever. Another
important element of this right is that the freedom of speech under this
article includes the liberty of the press. Chief Justice Patanjali Sastri,
in the case of Romesh Thappar v. State of Madras,6 held that the
freedom of speech and of the press lay at the foundation of all democratic
organisations.
However, Article 19(2)7 gives us a list of situations wherein the
restrictions imposed on the freedom of speech and expression would be
considered reasonable, as well as permissible for exercise by the law-
enforcing authorities. Some of these restrictions include speech which
affects the sovereignty and integrity of India, which leads to the
incitement of an offence, which is indecent or immoral, etc.8 If an act
falls under any of the situations listed under this clause, the person
would be held in violation of the concerned laws and would not be
protected by the free speech doctrine.
4 Constitution of India, 1950. 5 Article 19(1)(a), Constitution of India, 1950. 6 Romesh Thappar v. State of Madras, AIR 1950 SC 124. 7 Article 19(2), Constitution of India, 1950. 8 Id.
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III. ISSUES RAISING SERIOUS CONCERNS ABOUT SPEECH
AND EXPRESSION IN INDIA
There are various issues which act as a slippery slope when it comes to
free speech. It is in these situations that it always becomes difficult to
decide whether such speech is to be allowed or restricted. There are
various such cases in India, wherein we see academicians, legislators,
policy makers, and the public at large engaging in discussions as well as
debates, in order to decide whether the people’s right to speech should
be curtailed or not. Some of these issues arise with acts like
demonstrations, dramatic performances, sedition, incitement of illegal
offences, etc. In all these situations, we have often seen the Indian
government trying to apply the limitation of reasonableness as per
Article 19(2).
For instance, demonstrations, which are also known as protests in local
terminology, are a pretty common phenomenon in India. People take to
the streets to voice their concerns, opinions and demands, relating to
various issues, together as a society, and they often try to put across this
demonstration through the platform of the media. In some situations,
this can be a concern for the government due to varying reasons, which
is why they try to curb it by imposing a ban on any such act which causes
public disorder in their view. However, in the case of Kameshwar Prasad
v. State of Bihar, 9 it was held by the Supreme Court of India that
demonstrations, being visible representations of ideas, would be
protected as a form of speech, provided they are not violent and
disorderly. This is one very clear depiction of the problem that these
issues pose. It becomes hard to draw a line between what is allowed and
what is not. In the case here, the Court decided based on the effect of the
speech. But what remains of interest to many is whether any such
restriction imposed serves as an infringement of the right of people to
practice free speech.
Similarly, there are other different issues related to the free speech
doctrine that concerns the Indian society, and can be discussed in the
9 Kameshwar Prasad and Ors. v. The State of Bihar and Ors., AIR 1962 SC 1166.
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context of the First Amendment and Indian laws. However, for the
purpose of this paper, the author would be restricting herself to focus
only on situations of incitement of illegal offences, compelled speech, and
sexist and sexually oriented speech as the grounds causing unrest, as
well as the law’s position with respect to these in the Indian society.
1. INCITEMENT OF ILLEGAL OFFENCES
The Indian Penal Code, 186010 (“IPC”) governs all the criminal acts of
the people within the Indian State. It is the prime authority which deals
with the description of various crimes, and the different punishments
related to them. While there are certain special legislations which deal
with certain narrow categories of crime, the IPC continues to remain the
general as well as primary authority to deal with criminal cases. It is,
thus, a very comprehensive document which deals with almost all issues
related to different kinds of crimes. There are various acts which have
been classified as illegal under the IPC, like murder, rape, sedition, etc.
Similarly, incitement of certain offences is also a crime as per the law.
It is some of these offences, which are related to speech and expression,
that form the grounds for our analysis in this section.
There are various sections of the IPC which criminalise certain types of
speech. Few of these provisions are Section 153A,11 Section 292,12
Section 295A,13 and Section 298,14 which criminalise speech related to
different groups on two grounds—obscenity and religion. Another such
offence is sedition, wherein both the act and mere incitement of it have
been identified as illegal by the State. Section 124A of the IPC,15 deals
with the offence titled sedition. For an act to be classified as sedition, a
person needs to say or do something which amounts to an act against
the safety, peace and order of the state. It is in this manner that this is
10 The Indian Penal Code, 1860. 11 S. 153A of the Indian Penal Code, 1860. 12 S. 292 of the Indian Penal Code, 1860. 13 S. 295A of the Indian Penal Code, 1860. 14 S. 298 of the Indian Penal Code, 1860. 15 S. 124A of the Indian Penal Code, 1860.
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in conflict with the idea of freedom of speech and expression, as
guaranteed under Article 19(1)(a). It can be argued that such a law
violates the doctrine of free speech and expression.
The Supreme Court of India has dealt with the conflict between the law
related to sedition and the right to free speech in the case of Kedarnath
Singh v. State of Bihar,16 wherein the Court held that speech and
expression of individuals which disrupts the law or provokes and incites
violence will amount to sedition under the laws of the nation. Recently,
the Supreme Court, in 2015, again ruled on this matter in the wake of
different arrests and political movements with respect to such laws. It
applied the Clear and Present Danger Test, like the USA, in the case of
Shreya Singhal v. Union of India,17 and held a particular law to be
restrictive because “it has no element of any tendency to create public
disorder which ought to be an essential ingredient of an offence that it
creates.” Paragraph 83 of this judgement is extremely important and
states that:
Information that may be grossly offensive or which causes
annoyance or inconvenience, are undefined terms which
take into the net a very large amount of protected and
innocent speech. A person may discuss or even advocate by
means of writing, disseminate information that may
be a view or point of view pertaining to governmental,
literary, scientific or other matters which may be
unpalatable to certain sections of society… Any
serious opinion dissenting with the mores of the day would
be caught within its net. Such is the reach of the section and
if it is to withstand the test of constitutionality, the chilling
effect on free speech would be total.
Thus, it was again reinstated by the Court that an action can
tantamount to sedition only and only if it amounts to an incitement of
violence, and disruption of law and order. In all other situations, an act
16 Kedarnath Singh v. State of Bihar, AIR 1962 SC 955, at 36-39. 17 Shreya Singhal v. Union of India, AIR 2015 SC 1523, at 41.
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being charged for sedition would be in violation of the individual’s right
to free speech.
However, even after the presence of such clear guidelines by the Court,
it is time and again observed that the government imposes laws on
sedition in situations of mere criticism of the Government of India, of its
constituent states, of its policies and of religion. Various governments
have constantly used this for curbing dissent.
Arundhati Roy, a famous Indian author, had once made comments on
Kashmir and the Maoists – both sensitive topics in India – and was
charged for sedition with reference to this act. Similarly, a case of
sedition was also filed against Amnesty India for protesting against the
violation of human rights in Jammu and Kashmir.18
There are several other instances where charges of sedition were levied
upon individuals, like the cases of Kanhaiya Kumar, a student at
Jawaharlal Nehru University,19 and Ramaiya,20 a South Indian actress.
In 2011, cartoonist Aseem Trivedi was also arrested in Mumbai for
putting up banners that mocked the Indian Constitution.21 The case
relating to Aseem Trivedi, however, went to court, and the arrest was
held to be violative of Trivedi’s right to freedom because his acts
amounted to political satire. It was held that “...words, signs or
representations, just by virtue of being against politicians or public
officials cannot be said to be against the government...”. 22
18 Press Trust of India, Sedition Case Registered Against Arundhati Roy, Geelani,
NDTV, Nov. 29, 2010, https://www.ndtv.com/india-news/sedition-case-registered-
against-arundhati-roy-geelani-440611. 19 ET Bureau, Kanhaiya Kumar, Others Charged with Sedition, THE ECONOMIC
TIMES, Jan. 15, 2019, https://economictimes.indiatimes.com/news/politics-and-
nation/kanhaiya-kumar-others-charged-with-sedition/articleshow/67534948.cms. 20 Maya Sharma, Ramya, Accused of Sedition for Pakistan Comment, Says won't
Apologise, NDTV, Aug. 25, 2016, https://www.ndtv.com/karnataka-news/actor-
politician-ramya-faces-sedition-case-for-pakistan-not-hell-comment-1448902. 21 Jason Burke, Indian Cartoonist Aseem Trivedi Jailed after Arrest on Sedition
Charges, The GUARDIAN, Sept. 10, 2012,
https://www.theguardian.com/world/2012/sep/10/indian-car=toonist-jailed-sedition. 22 Sanskar Marathe v. State of Maharashtra & Ors, 2015 ALL M.R. (Cri) 4637, at 16.
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Thus, this is a very important issue in India today: people’s participation
in the working of the government becomes essential while living in a
free and democratic society. Criticising the government, pointing out its
faults and where it went wrong is merely a way of helping the society to
improve and function in a better manner. The government is of the
people, by the people and for the people, and thus, the people should be
entitled to air their opinions on government actions. Arresting people
for merely pointing out the obvious and voicing their opinions is, thus,
illegal, and should not be carried out as it wipes out any possibility of
constructive criticism for the working of the government.
2. COMPELLED SPEECH AND EXPRESSION
Compelled speech refers to a situation wherein the government compels
the individuals to express themselves, hold certain beliefs, or belong to
particular associations or groups.23 Indian denizens have seen such
instances recurrently, wherein some action has been forced upon them
by the government. For example, filmmakers and cinema hall owners
need to run advisories which warn the viewers about the injurious
effects of cigarette smoking. Students in primary schools are forced to
learn the regional language, irrespective of their interest in it. Recently,
something that did the rounds was the compulsion on cinema owners to
play the national anthem before the screening of any movie, and the
compulsion for the viewers to stand and pay their respect to the same.
It is in this context that we deal with the issue of compelled speech and
its impact on the free speech doctrine in India.
The Indian Supreme Court has ruled on this matter, and held that if the
government fulfils certain criteria, it can compel its citizens to speak
about certain things or act in a certain manner. The requirements for
the government to impose such conditions are – firstly, there shouldn’t
be a very heavy burden imposed on the speaker. Secondly, the message
being carried by the said speech should be informative, educational or
23 Tala Esmaili, First Amendment, WEX LEGAL ENCYCLOPAEDIA, June 2017,
https://www.law.cornell.edu/wex/first_amendment.
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useful, and unconnected with political propaganda of any type. The
court dealt with this issue in the case of Union of India v. Motion
Pictures Association,24 wherein the government had imposed the
condition of mandatorily playing documentaries in cinema halls. In this
case, the Court ruled that since the duration of these films was relatively
short, it did not impose a heavy burden on the cinema owners. Further,
the purpose of this move was to promote education, news and scientific
knowledge, unconnected with partisan political propaganda. It is for
these reasons that the Court held that this compelled speech was
reasonable in nature, and did not violate the right of free speech granted
to individuals under the Constitution.
Even after such a clear test laid down by the Court, the government does
not seem to apply it, and comes out with some conditions which are quite
frivolous in their nature. One such order was the national anthem policy
in India, where it was mandatory to play the same before any movie
screening in cinemas, and people were to stand to pay their homage. The
Court argued that the aim behind this move of the government was to
“instil a feeling of committed patriotism and nationalism within one”.
However, this does not fulfil the second test, which was discussed in the
Motion Pictures case. Again, a fundamental question arose before the
Court about whether it is difficult for the public at large to comprehend
how playing the national anthem in cinema halls is going to encourage
or guarantee patriotism in the end. The Court later realised its mistake
and reversed the order.25
However, this issue still remains important in India because cinema
halls till date play the national anthem, and the people who do not wish
to stand for it are ridiculed and even beaten up by other people for not
being patriotic enough. The issue is as grave as a man being charged
with sedition in Kerala for not standing up when the national anthem
was playing, and another man in Mumbai being beaten by the public
24 Union of India v. Motion Pictures Association, AIR 1999 SC 2334. 25 India National Anthem no Longer Compulsory in Cinemas, BBC NEWS, Jan. 9,
2018, https://www.bbc.com/news/world-asia-india-42618830.
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because his foreigner friend refused to stand up for the Indian national
anthem.26 This is highly problematic in nature, and the government
doesn’t seem to be doing much with respect to this.
3. SEXIST AND SEXUALLY ORIENTED SPEECH
Another problem which arises in India with respect to the free speech
doctrine is the issue of sexually oriented speech. One example of this
problem is pornography and its ban. Time and again, the Central
Government of India has tried to ban pornography sites, just like many
other states. However, it has never been able to retain any such law in
the long run. People have always argued against such an order being
violative of the rights granted to the citizens under Articles 19 and 21 of
the Constitution. When it comes to pornography, what remains a crime
is its circulation and sale, and not merely viewing it. It is only in the
case of child pornography that even the viewing of it has been held as a
crime, since it is reasonable to do so.
However, even in the recent times, we see how some telecommunication
networks tend to block these sites on their own when they provide an
internet connection to the people. For instance, a few months back, Jio,
a telecom services provider in India, blocked pornography on its internet
network. It is due to such acts that the issue of pornography becomes
prevalent in India when it comes to the question of freedom of speech
and expression. The makers and artists have a right to express
themselves, and a ban, as such, comes in direct conflict with such right.
Another way in which sexually oriented speech affects the public is in
the form of censorship imposed due to obscenity by the censor board of
India. In 2017, India saw the initial ban of a film titled “Lipstick Under
My Burkha” by the Central Board for Film Certification (CBFC) because
it had “contagious sex scenes” and was “too lady-oriented; their fantasy
26 Adrija Bose, Ugly Indian Patriot: Foreigner Refuses to Stand for National Anthem;
Mob Thrashes Indian Friend, FIRSTPOST, Oct. 21, 2014,
https://www.firstpost.com/india/sedition-charge-attack-youth-theatre-illegal-stand-
national-anthem-1766667.html.
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above life”. The absurd and baseless reasoning continued, and according
to the Board, since the movie featured “abusive words, audio
pornography, and a bit sensitive touch about one particular section of
society”,27 it could not be certified for release.
As an Indian and a student of women’s issues, the author believes that
most of the times, Indian movies receive such a response from the CBFC
because of the inbuilt patriarchy of the system. There is always a
controversy when something women-oriented makes its rounds. The
definition of obscenity completely changes when it comes to the gender
it relates to, i.e. men and women. This is similar to the situation where
students of free speech often discuss whether the movie “Eyes Wide
Shut” should be allowed to be screened or not. The question before one
was whether a movie should be allowed to show naked men and women.
However, if such a discussion was to take place in the Indian society, it
would call for a straightaway ban from the CBFC. This is essentially
because there are too many sex scenes which might be inappropriate, but
if we try to look beneath the surface, we realise that the problem lies
with the female portrayal in the movie, and not the male. That is merely
the expansive impact of patriarchy within the society. It is similar to
how men can wear shorts to classes in some Indian colleges, but women
need to cover their arms and legs.
Thus, in situations like these, the reasoning behind the decisions of the
government becomes important. The Board likes to make the argument
that such movies, whether pornography or cinema, are disrespectful to
women, and thus, leads to their suppression in the society. However,
this is in major conflict with the right to free speech guaranteed to the
creators of these movies under the Indian Constitution. The government
relied on the limitation of morality in these cases, as well as the
maintenance of public order. However, morality, as a concept, is very
subjective.
27 Central Board of Film Certification Order No. DIL/662/2016-MUM/1244, dated
Jan. 25, 2017.
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The questions which come up are whether the Board is competent to
judge the definition of what is morally acceptable and what is not.
Whose morality do we rely upon, considering that what is moral can be
highly subjective in a society as diverse as India? Who decides the
representation on the Board? How do we ensure a fair representation?
It is because of all these underlying issues that the whole idea of a ban
on pornography, and certain visual representations within movies,
becomes an issue in the Indian society.
IV. FREE SPEECH AND FIRST AMENDMENT UNDER THE U.S.
CONSTITUTION: A COMPARISON
Article 1 and the First Amendment of the United States Constitution
grants its citizens the right to free speech and expression. It allows the
individuals in the country to express themselves without the
government’s interference and regulation. However, just like in case of
India (as discussed above), even in the case of the United States, this
right doesn’t seem to be absolute. There have been certain restrictions
and limitations on this right, time and again. However, the First
Amendment and the Supreme Court require the government to provide
substantial justification for any interference they make with this right,
before regulating the content of the speech.
The following part of the paper would focus on the application of the
First Amendment doctrines upon the three issues identified above in the
Indian society, with respect to freedom of speech and expression, and
attempt to understand if the two are in synchronization with each other,
or completely distinguishable.
1. INCITEMENT OF ILLEGAL OFFENCES
The United States has evolved tests for this particular category over the
years. The tests have varied from the Clear and Present Danger Test to
the Reasonableness Approach to the Risk Formula Approach. However,
the latest test to be applied by the courts is called the Brandenburg Test,
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which was derived in the case of Brandenburg v. Ohio,28 concerning the
Ku Klux Klan group. According to this test, the government needs to
meet certain requirements in order to convict anybody for incitement.
These requirements are: (a) an imminent harm, (b) a likelihood of
producing illegal action, and (c) an intent to cause imminent illegality.
The test has a lot of loopholes, as it leaves a lot of vagueness within it
and can be interpreted in various ways. However, that is a separate
issue altogether and not the focus of this paper.
It can be seen that this test differs significantly from the Indian position
on this matter. The Indian test is still very basic, just depending upon
the imminence of danger or violence. It is limited in scope and nature,
and does not look into other elements which might be relevant in
arriving at a decision that important. Especially considering the heavy
penalty attached to an offence, like sedition, the government should be
extremely careful when charging people under the same. The
Brandenburg Test goes beyond the scope of the tests which are applied
in India.
Under the Indian jurisprudence, if an act causes a certain level of
violence or has the potential to cause violence, the person committing
the act could be held liable for sedition. However, if we apply the
Brandenburg Test, we see more conditions which have to be met for an
act to be held as an act of sedition. The violence which the Indian
judiciary talks about needs to be imminent in nature. That means that
the action that the government fears should be an immediate action, and
not something that might happen after six months, after the people
engage in many more discussions/debates on that topic.
For instance, let’s look at the case of Arundhati Roy, who made certain
comments about Kashmir. Her comments did not pose any imminent
danger because her words were not of the nature to illicit an immediate
response from the public at large. Thus, the government would fail in
holding her liable in the beginning itself. Further, she had no intent of
causing any protests, strikes, violence, etc. On the contrary, her
28 Brandenburg v. Ohio, 395 US 444 (1969).
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intention was to bring to light the reality of the situation so that the
government could work on it in order to bring about peace among the
people. Therefore, we can conclude that her speech lacked the intent to
cause an imminent illegality. Thus, it would be very easy for the
government to decide that she was not violating Section 124A of the IPC
in any manner.
The Brandenburg Test is quite comprehensive for the Indian system,
even though it has its own elements of faults. It could easily apply to the
Indian situation as it does not go against any of the Indian objectives in
any way whatsoever. The test would apply perfectly to the issue of false
accusations under the sedition laws in India, as it lays a clear guideline
for the government to apply before it can make any arrests under the
IPC.
2. COMPELLED SPEECH AND EXPRESSION
Earlier, even in the USA, the courts had upheld the power of the State
to expel certain students just because they did not comply with the rules
regarding paying allegiance to the flag of the United States of America,
even if it was against their religious beliefs to pay respect to anybody
other than their God and in any form whatsoever.29 However, in the
famous case of West Virginia State Board of Education v. Barnette,30 the
court overturned the decision taken in the Minersville case. In this very
progressive decision, Justice Jackson gave the decision solely on the
basis of the freedom of speech granted to individuals under the US
Constitution, and chose to ignore the religious arguments undertaken
by the parties. He based his decision on the Clear and Present Danger
Test. Unless the action of the students causes any danger, they cannot
be forced to do something they do not wish to do, as it restricts their
right to free speech and expression.
29 Minersville School District v. Gobitis, 310 US 586 (1940). 30 West Virginia State Bd. of Educ. v. Barnette, 319 US 624 (1943).
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Time and again, the US Supreme Court has held speech compelling the
individuals to act in a particular manner to be violative of the First
Amendment rights. In the Indian case of paying allegiance to the
national anthem, we saw a similar situation wherein the Apex Court, in
its first order, held that it is compulsory for the people to stand up and
pay their respect. However, we later saw them reversing this order,
though no clear reasoning was given for the same.
If we apply the US doctrine followed by Justice Jackson in the Barnett
case to the Indian scenario of compelled speech, the order of making it
compulsory in the first place would not have taken place, because the
doctrine clearly states that there needs to exist an imminent and clear
danger arising out of the act of not complying with such an order. If we
apply the Barnett Test to the current scenario, we see that the order of
the government would be unconstitutional, as there exists no clear and
present danger from the act of the citizens of not standing up for the
national anthem. Further, if we apply this test to the situation of
screening of documentaries, we will find that order to be
unconstitutional as well. These documentaries are mostly about issues
of public importance, such as the injurious effects of smoking on human
health. There exists no clear and present danger if the people do not
watch these documentaries. In fact, there are very few people who get
affected by watching them.
Additionally, if the government really wanted to do this for the benefit
of the people, there are various other ways of doing it, like broadcasting
it on cable television, where there exists a bigger chance of people
watching it, or putting up multimedia hoardings at different public
places, where these documentaries can be played for people to watch.
Thus, there exists no reason for the government to make it compulsory
for these documentaries to be screened in cinema halls (only). We,
therefore, see that the US constitutional scheme of the First
Amendment provides a clear and concise test, which could be applied to
the situation in India, in order to ensure that people enjoy their
fundamental right to freedom of speech and expression.
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3. SEXIST AND SEXUALLY ORIENTED SPEECH
Under the US First Amendment doctrine, we see that pornography,
barring two categories, is protected under the First Amendment. We saw
this in the case of American Booksellers Association Inc. v. Hudnut,31
wherein the court held that the Ordinance banning pornography was
unconstitutional. Obscenity and child pornography, however, do not
receive any protection under the First Amendment. This is intrinsically
similar to the position taken by the courts in India as well.
Obscenity has always been difficult to define and decide upon. A judge
of the US Supreme Court even went as far as saying that “he’ll know
what it is when he sees it”.32 This points to the problem faced by the
courts when it comes to cases concerning sexually oriented speech and
expression. Similarly, the courts in India have also found it difficult to
define what obscenity is and what amounts to obscenity. It would be safe
to say that the two jurisdictions are on the same path when it comes to
interpreting the conflict between sexually oriented speech and the
doctrine of free speech.
A US court once applied the Hicklin Test to these situations, wherein
the court looked at “whether the tendency of the matter is to deprave and
corrupt those whose minds are open to such immoral influences, and
into whose hands a publication of this sort may fall”.33 If we apply this
test to the Indian situation, the result would still be the same. The
government would argue that a movie like “Lipstick Under My Burkha”
will deprave the mind of young women, and make them act in a manner
wherein their desires come above their lives and the wants of others. As
we have discussed earlier, this is because of the patriarchal mindset of
the society, wherein the goal is to look at the negative in women, instead
of seeing how a movie like this would help them to establish their wants
and desires, and be comfortable in their own skin.
31 American Booksellers Association Inc., et al. v. William H. Hudnut, 771 F.2d 323
(1985). 32 Justice Potter Stewart, Jacobellis v. Ohio, 378 US 187 (1964). 33 Regina v. Hicklin, LR 2 QB 360 (1868).
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However, the Miller Test, which is the latest position of law on this
subject, would lead to a completely different result in the Indian society.
The movie had a lot of artistic, philosophical and psychological value and
had a meaning within it. It was not offensive in any manner whatsoever
as per any of the applicable laws in this regard. A common man would
not find anything problematic per se with the movie. Thus, there exists
no ground for it to be referred to as obscene, and thus, be banned. This
test offers a more wholesome approach, and helps us test the situation
in a better manner, keeping in mind things which go way beyond the
public perception of morality and immorality.
V. A SUGGESTED COMPREHENSIVE SYSTEM OF SPEECH
AND EXPRESSION
1. WHY WE NEED LIMITATIONS TO THE CONCEPT OF FREE SPEECH
As Hobbes argues, all human beings are inherently nasty and evil. If
one gives them something, they will always find a way to misuse it.
Similarly, when you give humans the right to free speech, they are more
probable than not to misuse this right. An example of this would be
when a terrorist organisation tries to preach its ideologies to other
people. For them, they have the right to say whatever they want, but
whatever they say is not beneficial for the society at large. A world with
complete freedom of speech and expression would be one of chaos, where
people might be constantly hurting one another with their words and
conduct, which could lead to a lot of resentment amongst them. Further,
this could lead to unnecessary arguments and fights among people,
which would mean never-ending litigation in the long run. Thus, in such
a situation, the regulation of speech is highly important.
Further, in a democratic and secular society, where people have
different beliefs and mindsets, some speech might be offensive for a few,
and some to the others. It is smart if we establish some ground rules in
order to respect the views of everybody in the society. Therefore, where
the speech becomes hateful and inconsiderate, it should be restricted in
some manner.
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Another area where the author believes that speech should be restricted
is when it comes to sexually offensive speech. The author firmly believes
that, in today’s world, one should think twice before saying anything
that perpetuates the archaic and patriarchal undertones existing in the
society, as it has taken us a lot of time to emerge from it. There are still
many issues prevalent in the society today which show us how we have
still not reached a level of complete equality. Therefore, any speech that
undermines the position of women, queers and transgenders in the
society should be restricted and not allowed. In this regard, the author
would be in favour of banning pornography, even when it pertains to
adult pornography, because it is always portrayed as objectifying the
woman, and that is extremely problematic. For instance, the presence of
pornography which it makes it look like the sexual act is forced
normalises rape culture amongst the viewers.
However, pornography where people are treated as equals should not be
a problem, as the only concern with pornography is about the
perpetuation of degradation of women; no moral or religious
connotations against sex, in general, are the reasons for saying so. For
example, feminist pornography (a type of pornography) would be
completely acceptable under this system of speech.
Thus, it remains the argument of this paper that speech needs to be
regulated, but not necessarily restricted. The author believes that
regulation is intrinsically different from restriction. It is not necessary
that every regulated speech is restricted speech.
2. HOW TO DEAL WITH THE THREE ISSUES AND THE TESTS APPLIED
Under the system of speech and expression being proposed by the author
in the following section of this paper, the first issue of sedition would be
dealt with in a manner where intention would not be considered by the
courts. This is because when a person says something, he intends to
mean everything he or she says, especially in situations where it is
planned. That is the basic purpose of speech.
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Even if one accidentally says something, one does think about it for him
or her to be able to state it. For instance, in a rally where a person is
speaking, he or she has thought about what they will say. Even though
some of the things might be said in the spur of the moment, they would
still conform to a pre-thought-out flow of things. However, the conditions
of imminent danger and likelihood of causing an illegal act would still
remain, as they do under the Brandenburg Test. Thus, the test applied
would be very similar to the Brandenburg test, minus the element of
intention to cause imminent danger.
When it comes to the issue of compelled speech, the State would not be
able to compel the citizens to say and/or do something in a particular
way which the citizens do not wish to do themselves. Under this system
of speech, there wouldn’t be a requirement of any test other than that of
absolute necessity, because until and unless it is absolutely required
of the government to impose something on the citizens, they shouldn’t
do it.
Thus, in every other situation, an order of the government imposing
some speech or conduct on the citizens would be completely
unacceptable. Unlike the US Barnett Test, this test does not use the
words clear and present danger. I believe that absolute necessity can only
be qualified by the presence of clear and present danger. However, it just
opens up scope for other situations as well. For instance, the
documentaries on smoking would be allowed under this system, because
they are absolutely important in a society where an extremely high
number of people are dying because of lung cancer and tuberculosis,
caused due to smoking, and even a small or minute change that can be
brought about matters. Thus, it expands the scope of the Barnett Test,
but not in a wrong way.
Lastly, for the issue of sexist and sexually oriented speech, this system
of speech would have a zero-tolerance policy. There would be
restrictions on sexually oriented speech only when the speech is sexist in
nature. Other than that, there would be no restrictions on sexually
oriented speech. Everything would be acceptable, unless and until it
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violates the rights of women to live with dignity and exercise control
over their bodies. Therefore, pornography would also be banned to the
extent that it diminishes the position of women in the society by
objectifying them. Unless that is the case, pornography would be
allowed, and so would movies that cover sexual themes and scenes. This
test remains completely distinct from the Miller Test applied by the US
Courts, which follows a three-step review of all the acts of the State, as
discussed earlier. Thus, it provides more freedom to the citizens, and
imposes an absolute ban in only one situation.
3. STRENGTHS AND WEAKNESSES OF THIS MODEL
The main strength of this model of speech, as has been explained above,
is that it protects the freedom of speech and expression to the maximum
extent possible, and provides a lot of rights to the citizens of the nation.
However, it still takes into consideration the concerns which the
government has, and tries to accommodate them while ensuring that the
right of the people is maintained to the extent that is reasonably
possible. It attempts to create a balance between these two extreme
situations.
However, this system lacks tolerance for art in some aspects. For
instance, in the case of sexually oriented speech, this stance might come
off as extremely strong to some people, even though there exist certain
valid reasons for keeping things the way they are. Some people might
regard certain artists making paintings or movies to be extremist in
nature. However, in the author’s opinion, it is not yet time to have
complete freedom relating to such issues in a society like India.
VI. CONCLUSION
After taking into consideration the problems being faced by the Indian
society with respect to free speech, and its treatment domestically, it can
be seen that the Indian system is becoming synchronized with the US
standards, with the progress of time. There are various similarities
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between the holdings of the two judicial systems, even though the
reasoning behind these decisions might differ for the two.
The system which is suggested hereinabove differs a lot from both the
Indian and the US standards. The system provides more freedom to the
citizens, with lesser restrictions on their conduct. In fact, it tries to
provide the citizens with the right to freedom of speech and expression
in its true sense.
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SUPREME COURT’S JURISPRUDENCE ON THE
WEDNESBURY PRINCIPLE
Krithika Srinivasan & Aarti Krishnan†
ABSTRACT
This paper primarily focuses on the study and
detailed analysis of the Wednesbury Principle, and
the evolution of this principle making use of the aid
of various judgments of the Supreme Court. It would
further discuss the importance of judicial review of
administrative action in the realm of administrative
law and how any unjust or unfair action ought to be
rectified by exercising the power of judicial review.
Moreover, the paper would also briefly discuss about
judicial review as an element of the basic structure
of the Constitution of India, which cannot be
invalidated even by an amendment made to the
Constitution of India. Also, it would trace the
transition from the Wednesbury Principle to the
doctrine of proportionality, which holds that a
government action may be only as intrusive as is
necessary for the achievement of a vital public
purpose, in multiple common law countries where
this principle was earlier being followed, including
India.
This paper would further analyse the general and
specific application of the Wednesbury Principle and
how it operates as a ground for judicial review of
administrative action. Furthermore, it provides for
the interpretation of the term reasonableness
necessary for the application of this principle. It
would conclude with a comprehensive analysis as to
† 4th year law students at Symbiosis Law School, Hyderabad.
The authors may be reached at [email protected] and
[email protected], respectively.
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how the Wednesbury Principle has been shaped by
the Apex Court’s own jurisprudence.
I. INTRODUCTION
The essence of the Wednesbury Principle lies in the idea that the
exercise of powers by the judiciary should not be in such a manner that
it would seize or assume the powers of the public authorities with whom
such powers vest.1 Irrationality was developed as a criterion for judicial
review of administrative action in the landmark case of Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation.2 With the
development and rapid growth in the field of administrative law and the
increasing need to keep a check on the abuse of certain discretionary
powers available to administrative authorities, the courts have evolved
principles to achieve the same. If an administrative action is irrational,
contrary to the law or unreasonable, it would attract judicial
intervention through the medium of judicial review. One such principle
which has evolved through the interpretation of the courts is that of
Wednesbury Unreasonableness.
A decision which is based solely on unreasonable or
irrational grounds to such an extent that no prudent man
acting reasonably would have possibly given such a
rationale is considered to be a decision which is Wednesbury
unreasonable.
The term unreasonableness has more than just one meaning. It is
capable of encompassing within its scope various grounds such as the
acts done by an administrative authority on the basis of irrelevant
considerations or an act which is mala fide or acts done for an improper
purpose. Similarly, unreasonableness could also mean that even though
an administrative authority has acted in accordance with the law, it has
assigned more emphasis upon certain factors more than what they
1 H.W.R. WADE & C.F. FORSYTH, ADMINISTRATIVE LAW (11th ed. 2014). 2 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) I KB
223 (CA).
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deserved, in comparison to the other relevant factors. Further,
unreasonableness could also provide a ground for judicial intervention,
where any statute or the Constitution of India so requires. The standard
of reasonableness is a highly subjective concept, because even two
reasonable and prudent persons are capable of arriving at opposite or
varying conclusions due to their individual ideas in relation to the
reasonableness of a decision.
II. IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW
OF ADMINISTRATIVE ACTION
1. INTRODUCTION
Judicial review of administrative action is a feature naturally enshrined
in the scheme of our Constitution, and has been developed on the
touchstone of the principles of rule of law and separation of powers. The
feature of judicial review plays a vital role in seeing to it that the powers
and privileges given to administrative authorities are not exceeded.
Earlier, judicial review of administrative actions could be carried out
only on the basis of irrationality, illegality, and procedural impropriety.
However, with the passage of time and significant developments in the
realm of administrative law, the Courts have departed from this
principle being applied only on the abovementioned grounds. The main
purpose of the concept of judicial review of administrative action is to
obtain an equitable balance between the discretion of administrative
authorities to take decisions with respect to certain matters in
accordance with the government policy and the requirement of fairness.
2. OPERATION OF IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW
The rationality of the decisions taken by an administrative authority is
based upon the following criteria:
a. If such a decision is arrived at without the authority of the law;
b. If such a decision is based upon no sound evidence;
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c. If such a decision is dependent upon some irrelevant and additional
consideration;
d. If such a decision is so grossly defying logic or the established rules
of moral standards such that no reasonable person would arrive at
such a conclusion;3 or
e. If such a decision is so unreasonable that it can be said to be done in
bad faith.
Within its ambit, irrationality may include the consideration of
irrelevant material, ignorance of relevant considerations, usage of power
for improper purposes, and the mala fide exercise of powers. Yet, when
understood in a substantive sense, it refers to an administrative action
which is so irrational that it could not have been taken by any public
authority.
Keeping in mind the role of the judiciary in using irrationality as an
operative ground for judicial review of administrative action, it is also
important to place certain limits upon such intervention. This means
that it is not up to the courts to impose their choice regarding the
exercise of discretion with respect to an administrative authority, and
to take up the matter and reassess it. Further, in the case of R v.
Cambridge Health Authority,4 it was clarified by the court that the task
of substituting a judgement is beyond their assigned powers. In the
present case, the court was of the opinion that success or failure of the
medical treatment was not to be decided by the court. The only matter
of concern of the court would be regarding the lawfulness of the given
decision to be scrutinized.
Though it has been established that courts do not have the power to
substitute a judgement, it is also a well-recognised fact that the courts
are vested with the power to scrutinise the rationality of a decision
which has been made by an administrative body.
3 Lord Diplock in GCHQ v. Ministry for Civil Services, (1985) AC 374. 4 R. v. Cambridge Health Authority, (1995) 2 All ER 129.
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The word unreasonableness has been explained in two different senses
by Lord Greene MR in the landmark case of Associated Picture Houses
Ltd. v. Wednesbury Corporation. Firstly, this term was used to
determine the different grounds on the basis of which the legality of the
actions of public authorities may be challenged. In an umbrella sense,
this term was, therefore, used to denote actions relating to irrelevancy
and illegality. Secondly, unreasonableness was also given a substantive
meaning, wherein even a decision which passed through the hurdles of
relevancy may be invalidated by virtue of the Wednesbury Test, as
discussed above.
III. APPLICATION OF WEDNESBURY PRINCIPLE
1. INTRODUCTION
The Principle of Wednesbury Unreasonableness plays a very crucial role
with respect to exercising control over discretion. The operation of
irrationality as a ground for judicial review of administrative action
revolves around the concept of rule of law, non-arbitrary exercise of
power and reasonableness. Any administrative action which goes
against any of the abovementioned principles would be quashed by the
court on grounds of being in violation of the golden triangle, that is,
Articles 14, 19 and 21 of the Constitution of India.
In cases where the need for reasonableness is not specified explicitly, its
requirement has been woven into every administrative action in an
implied manner by the courts, because an administrative action should
not be arbitrary, irrational or subjective in nature. Hence, where an
administrative authority is permitted by law to take an action in any
manner as it deems fit, it has been interpreted by the judiciary to imply
in any manner as it reasonably deems fit.
2. GENERAL APPLICATION OF WEDNESBURY PRINCIPLE
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The test of irrationality or the Wednesbury Principle has been utilized
by the courts even in the adjudication of disputes not pertaining to the
violation of fundamental rights. For instance, the Wednesbury Test has
also been applied for the invalidation of certain conditions with respect
to planning permission. Making use of this principle, the need for the
construction of an ancillary road across the front of a site of which the
right to access is to be given to others, which is a compulsory duty of a
developer, was quashed.5
In the case of R v. Boundary Commission for England Ex. P. Foot,6 the
Wednesbury Test was applied even with respect to industrial relations.
However, the determination of the reasonableness of the subject matter
in question is to be done in a careful and cautious manner, keeping in
mind the notions put forth by Lord Greene MR. Also, in the case of R v.
Bridgnorth DC Ex. P. Prime Time Promotions Ltd.,7 the Court applied
the test of Wednesbury Unreasonableness in a manner so as to ascertain
the belief of the court in relation to the degree of reasonableness in the
way in which the discretion was exercised.
Moreover, in the case of R v. Parliamentary Commission for
Administration Ex. p. Balchin,8 Justice Sedley put forth that a decision
may be considered as (Wednesbury) unreasonable if it contained an
error in its reasoning, which would take away the logical integrity of
such a decision. If the error of the kind mentioned above is capable of
being highlighted, then there is no requirement on the part of the
applicant to prove that the decision maker was temporarily unhinged.
In the subsequent case of R v. North and East Devon Health Authority
Ex. p. Coughlan,9 it was held by the Court that the aspect regarding the
rationality of a decision includes decisions arrived at by flawed logic as
well as those defying comprehension.
5 Halls Co. Ltd. v. Shoreham by Sea Urban, (1964) 1 WLR 240. 6 R v. Boundary Commission for England Ex. P. Foot, (1983) QB 600. 7 R v. Bridgnorth DC Ex. P. Prime Time Promotions Ltd., (1987) 1 WLR 457. 8 R. v. Parliamentary Commission for Administration Ex. p. Balchin, (1997) COD
146. 9 R v. North and East Devon Health Authority Ex. p. Coughlan, (2001) QB 213.
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In the case of R v. Secretary of State for the Home Department Ex p.
Daly,10 it was suggested by Lord Cooke that, at a future date, it would
be realized that the Wednesbury Principle is, in fact, a retrogressive
decision in the field of English administrative law, to the extent that
there were several degrees of unreasonableness, and only the highest
degree of such unreasonableness would render the decision of an
administrative authority as judicially invalid.
3. SPECIFIC APPLICATION OF WEDNESBURY PRINCIPLE
In cases wherein rights have been the concern, there has often been a
variation in the intensity in the application of the Wednesbury Principle
by the courts. Therefore, it is now a well-recognised aspect that the
courts utilise judicial review, which includes the Wednesbury Test, and
the degree of intensity of the application of the same would depend on
the subject matter of the dispute in question. It was held by Lord Bridge,
in the case of R. v. Secretary of State for the Home Department Ex p.
Brind,11 that in disputes where a person’s rights are at stake, the court
should depend on the threshold as to whether such a decision could have
been reasonably made by a reasonable Secretary of the state. The
inception of the inquiry must be traced by the court according to the idea
that the violation of a right would only be justified where there is a
compelling public interest.
According to Lord Diplock, the notion underlying the traditional
Wednesbury Principle is the requirement of the courts to be aware of
their restricted role. The premise which majorly shaped the Wednesbury
Principle was the aspect that the Parliament had assigned certain
political and social powers to the administrative authorities, and such
powers were not be assumed by the judiciary when dealing with disputes
relating to such authorities.
10 R. v. Secretary of State for the Home Department Ex. p. Daly, (2001) 2 A. 532. 11 R. v. Secretary of State for the Home Department Ex. p. Brind, (1991) 1 AC 696.
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The manner in which this principle would be applicable in cases wherein
rights are the matter of concern would be by examining as to whether
the decision was made out of an approach which would be applicable to
any rational decision maker.
IV. THE WEDNESBURY UNREASONABLENESS VERSUS THE
DOCTRINE OF PROPORTIONALITY
1. INTRODUCTION
The power of the courts to judicially review an administrative action is
not equivalent to its power as a court of appeal. During the course of
judicial review, the court merely reviews the procedure involved in
making the concerned decision by making use of the Wednesbury Test.
In the case of Fruit Commission Agents Association v. Government of
Andhra Pradesh,12 it was held by the Supreme Court, in reiteration of
the abovementioned principle, that the rent which has been fixed would
be an administrative function, and therefore, the Court cannot exercise
its appellate powers upon administrative decisions. Intervention by the
judiciary would be permissible only upon the application of the
Wednesbury Principle.13 On the other hand, the doctrine of
proportionality is a concept wherein the primary concern of the court is
to examine the procedure, manner or method utilized by the decision-
maker to arrive at a given conclusion, or the decision in question. Thus,
the doctrine of proportionality places its focal point on the elaboration of
the rule relating to permissible priorities.
2. APPLICABILITY OF THE DOCTRINE OF PROPORTIONALITY IN INDIA
The application of this doctrine was first considered by the Apex Court
in the case of Union of India v. G. Ganayutham,14 in which it was pointed
12 Fruit Commission Agents Association v. Government of Andhra Pradesh, (2007) 8
SCC 511. 13 XLIII P PUNEETH, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 7 (2007). 14 Union of India v. G. Ganayutham, (1997) 7 SCC 463.
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out that the Wednesbury Principle would be a guiding factor in India,
except in matters where fundamental rights are involved. However, the
applicability of the doctrine of proportionality in relation to the cases
involving the violation of fundamental rights was refrained from being
addressed by the Court. Subsequently, in the landmark case of
Omkumar v. Union of India,15 it was realized by the Supreme Court that
the doctrine of proportionality was a long found concept and was being
applied with respect to adjudication of matters relating to the
infringement of the fundamental rights enshrined in Articles 14, 19 and
21 of the Constitution of India. Upon extensive review, the Supreme
Court arrived at the conclusion that any administrative action against
the fundamental rights under Articles 19 and 21 of the Constitution of
India would always be tested against the doctrine of proportionality,
though it may not have been expressly provided that the proportionality
principle is being applied. With specific reference to Article 14 of the
Constitution of India, the Court held that when the action of the
administrative authority is claimed to be discriminatory, a preliminary
review would be carried out by the courts, making use of the doctrine of
proportionality. However, when the action of the administrative
authority is claimed to be arbitrary, the Principle of Wednesbury
Unreasonableness would apply.
However, post the Omkumar case, there has hardly been any
advancement with respect to the doctrine of proportionality, except for
the fact that certain subsequent judgments16 have demonstrated the
transition from the Wednesbury Principle to the doctrine of
proportionality.
3. RELATIONSHIP BETWEEN THE WEDNESBURY PRINCIPLE AND THE
DOCTRINE OF PROPORTIONALITY
15 Omkumar v. Union of India, AIR 2000 SC 3689. 16 Indian Airlines Ltd. v. Prabha D. Kanan, AIR 2007 SC 548; State of U.P. v. Sheo
Shankar Lal Srivastava, (2006) 3 SCC 276.
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The wide boundaries of the external composition of judicial review were
put forth by Lord Diplock in the landmark case of Council of Civil
Service Unions. v. Minister for the Civil Services,17 as follows:
irrationality, illegality, and procedural impropriety. This was said to be
the tripartite classification which demarcated the external structure of
judicial review. Further, it was held by Lord Roskill that this tripartite
classification would not be exhaustive or mutually exclusive.18 The
transition may be accommodated with regards to the major
developments within the sphere of judicial review, which includes the
changes in the aspect of jurisdiction and the decline of immunities and
prerogative powers. However, these variations could be properly
accommodated within the tripartite classification developed by Lord
Diplock.19
Another mode of keeping administrative discretion under control is
through the doctrine of proportionality. It was stated by Lord Diplock,
in the case of R v. Goldsmith,20 that “you must not use a steam hammer
to crack a nut if a nut cracker would do”. Broadly, the doctrine of
proportionality holds it necessary that a government action should be
only as intrusive as is required to achieve a vital public purpose.
However, contrary to the Principle of Wednesbury Unreasonableness,
this doctrine acts as a useful tool of judicial review as a result of the
objective criteria provided for analysis. In the current scenario, the
doctrine of proportionality is regarded as an additional ground of judicial
review under the branch of irrationality.
Thus, from the above comparison, it is evident that the doctrine of
proportionality and the Principle of Wednesbury Unreasonableness both
fall under the concept of irrationality. At the beginning, the doctrine of
proportionality merely operated as a competitor to the traditional
Wednesbury Test. But due to the advancement in the doctrine of
17 Council of Civil Service Unions. v. Minister for the Civil Services, (1984) 3 All ER
935. 18 Wheeler v. Leicester City Council, [1985] AC 1054. 19 XXXIX M P JAIN, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 10 (2003). 20 R v. Goldsmith, (1983) 1 WLR 151.
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proportionality and due to its high degree of objectivity, it gained
momentum, and therefore, was sought to completely replace the
Wednesbury Principle, operating as the only branch of review within the
concept of irrationality.
V. THE SUPREME COURT’S JURISPRUDENCE ON THE
WEDNESBURY PRINCIPLE
1. INTRODUCTION
It is an evident and established fact that judicial pronouncements act as
a major foundation of administrative law. The judiciary has developed
various concepts of administrative law with the help of several cases and
judicial decisions. The evolution of a majority of the doctrines, theories
and principles of administrative law, including the Principle of
Wednesbury Unreasonableness, have resulted because of the acts of the
judiciary done with an intent to ensure accountability, transparency,
fairness and participation within the administrative functions and
processes. Most of the principles of administrative law have been a
result of the ingenuity and creativity of the judiciary.
Over the past few decades, the Indian judiciary has played a major role
in contributing to the evolution, application and development of these
theories and principles of administrative law.
2. JURISPRUDENCE OF THE SUPREME COURT
In the case of Union of India v. Lt. General Rajendra Singh Kadyan,21 it
was held by Justice Rajendra Babu that the concept of judicial review is
related to scrutinizing whether the procedure applied to arrive at the
decision in question is proper, and not the final judgment in itself. The
Courts cannot go through the concept of judicial review when it is
explicit that the administrative action in question is not arbitrary, and
has been developed on the basis of relevant criteria, and also where
21 Union of India v. Lt. General Rajendra Singh Kadyan, (2000) 6 SCC 698.
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there is a nexus between such an action and the facts of the dispute in
question.22
Further, in the case of Munna Roy v. Union of India,23 the appellant who
was shortlisted to fill a position was not appointed for the same. An
application was filed by her in the Central Administrative Tribunal.
While the application was pending, the panel involved in the selection
process was scrapped on account of irregularities. It was held by the
Supreme Court that the courts could intervene if the grounds on which
the decision was taken were erroneous, though the fact that her name
was included in the shortlist did not bestow any right upon her to be
selected. In the present case, the action of scrapping the selection panel
was considered to be arbitrary and irrational by the Court.
Applying the test of Wednesbury Unreasonableness, in the case of
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,24
it was held by the Court that the acts of the government regarding the
punishment of censure was without jurisdiction, and also arbitrary in
nature.25 According to the Court, the above action was an excessive
exercise of discretionary power, and the only alternative could be to ask
the officer to acquire the sanction well in advance. The appeal was
allowed by the Court on grounds that the formal requirements were only
slightly infringed, and therefore, did not constitute as a sufficient
ground for the issuance of a censure order. Also, it would not be a ground
for holding the person ineligible for promotion.26
22 XXXVI A K GANGULI, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 15
(2000). 23 Munna Roy v. Union of India, (2000) 9 SCC 283. 24 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947) 2 All
ER 680. 25 Ganguli, supra note 22, at 7. 26 “If, in the statute conferring the discretion, there is to be found, expressly or by
implication, matters to which the authority exercising the discretion ought to have
regard, then, in exercising the discretion, they must have regard to these matters.
Conversely, if the nature of the subject- matter and the general interpretation of the
Act makes it clear that certain matters would not be germane to the matter in
question, they must disregard those matters.”
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Also, in the case of Union of India v. Rajesh PU Puthuvalnikathu,27 the
Apex Court ruled that there existed no sound justification to the denial
of the opportunity of appointment to the other candidates who were
selected in a manner which was not flawed, as there were only 31
specific candidates whose appointment was tainted.28 One of the
important inferences derived out of this case is that the concerned
decision of the administrative authority to cancel the complete selection
list could not be considered to be flawed, on the application of the
Principle of Wednesbury Unreasonableness. The above decision is not
capable of being regarded as a decision which is so irrational or
unreasonable that no prudent individual is capable of understanding
how it lies within the limits of its authority. However, it was still
regarded as an arbitrary and unreasonable decision by the Court. This
implies that a milder condition of unreasonableness, as compared to the
Wednesbury Principle, was applied by the Courts.
In the case of Roberts v. Hopwood,29 the court held that a local authority
was bound to exercise its discretionary power regarding the payment of
“such wages as it may think fit” in a reasonable manner. Payment of £4
being made to a worker of the lowest grade on a weekly basis was
considered to be so unreasonable as to render ultra vires, despite the
general conception behind such a discretionary power.
The words “may think fit” was interpreted by Lord Wrenbury to mean
“may reasonably think fit”. According to his opinion, the presence of the
word reasonably or reasonable did not matter or made no difference
since “a person in whom is vested a discretion must exercise his discretion
upon reasonable grounds. Discretion does not empower a man to do what
he likes merely because he is minded to do so- he must in the exercise of
his discretion do, not what he likes, but what he ought to do. He must act
reasonably.”30
27 Union of India v. Rajesh PU Puthuvalnikathu, (2003) 7 SCC 285. 28 Jain, supra note 19, at 13. 29 Roberts v. Hopwood, (1925) AC 578. 30 M.P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (6th ed. 2013).
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Furthermore, in the case of Hall & Co. v. Shoreham UDC,31 the plaintiff
was granted a planning permit by the defendant on the condition that a
road would be constructed on his land for the dedicated use of the public.
In case of any loss of the land which was to be used for the construction
of the road, the plaintiff would be entitled to no compensation. This
condition was held to be void on account of unreasonableness by the
court. The manner in which the defendant chose to execute the deal was
considered to be utterly unreasonable. No proper and clear authority was
found by the court supporting the imposition of such a condition.
In the case of Chairman, All India Railway Recruitment Board v. K.
Shyam Kumar,32 the order passed by the High Court was challenged by
the appellants, whereby a direction was given to the Board to proceed
with the process of recruitment to be carried out on the basis of a written
test conducted earlier, against which there existed allegations of
malpractices and irregularities. Consequently, the decision of the Board
with respect to the conducting of a re-test was ruled to be in violation of
Articles 14, 16 and 21 of the Constitution of India. In arriving at the
abovementioned decision, the High Court relied upon the Principle of
Wednesbury Unreasonableness. However, the decision of the Board with
respect to conducting a re-test was upheld by the Supreme Court, by
applying the two principles, i.e. the Principle of Wednesbury
Unreasonableness and the doctrine of proportionality.33
The Apex Court ruled that the consideration of the materials which
aided in the leakage of question papers as limited and as not serving as
a nexus to the allegations of irregularities was incorrect and erroneous
on the part of the High Court. A minor leakage of the question papers
would also constitute a sufficient ground for the written test to be set
aside and proceed with conducting a re-test as this would help in the
achievement of the ultimate objective, which is that of fair selection.
31 Hall & Co. v. Shoreham U.D.C., (1964) 1 All ER 1. 32 Chairman, All India Railway Recruitment Board v. K. Shyam Kumar, (2010) 6
SCC 614. 33 XLVI S.S. JASWAL, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 16
(2010).
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Therefore, a direction was issued to the Recruitment Board regarding
the regularization of the results obtained in the second test conducted,
and the appointment of the candidates who have been selected through
the same.
Further, it was also held by the Court that the Principle of Wednesbury
Unreasonableness was to be applied with respect to decisions which are
so unjustifiable, with regard to their opposition to ethical and moral
standards or logic, that no rational person who has applied his prudent
mind to issue in question could have possibly arrived at such a
conclusion. Contrastingly, the doctrine of proportionality was a more
fastidious and precise form of a legal test, as compared to the test of
reasonableness. The Apex Court observed that as per the current
scenario, it was the doctrine of proportionality which was more
prevalent, but it believed that the Wednesbury Principle had not yet
reached its point of exhaustion or judicial burial, though it was soon to
happen in the future. The Court further went on to put forth that it
would not be safe to arrive at the conclusion that the Wednesbury
Principle has been completely replaced by the doctrine of
proportionality, differing from the opinion of the Supreme Court itself
on various previous occasions.34
VI. SUMMARY OF FINDINGS
The case of Associated Provincial Pictures Houses Ltd. v. Wednesbury
Corporation gave rise to the Principle of Wednesbury Unreasonableness.
Since then, this principle has played a pivotal role in ensuring the proper
34 State of Uttar Pradesh v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 – “We
are not oblivious of the fact that the Doctrine of Unreasonableness is giving way to the
Doctrine of Proportionality. The Wednesbury Principle may not now to be held to be
applicable in view of the development in Constitutional law in this behalf.”; Indian
Airlines Ltd. v. Prabha D Kanan, (2006) 11 SCC 67 – “Furthermore the legal
parameters of judicial review have undergone a change. Wednesbury Principle of
Unreasonableness has been replaced by the Doctrine of Proportionality.”; Jitendre
Kumar v. State of Haryana, (2008) 2 SCC 161 – “In certain jurisdictions, the Doctrine
of Unreasonableness is giving way to the Doctrine of Proportionality.”
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and effective practice of the Doctrine of Separation of Powers. This is
because the Wednesbury Test lays down an ideal foundation which
clearly defines the circumstances in which judicial intervention with
respect to administrative actions would be permissible, and in what
cases this principle ought not to be used as an excuse to interfere in the
powers and concerns of administrative authorities. In this manner, it
imposes checks and balances upon the exercise of discretionary powers
by the administrative authorities.
The limitation upon the concept of judicial review is dependent upon the
legality of the order passed by an administrative authority, or the
decision-making power of such an authority per se. In the course of
defining the parameters within which the concept of judicial review of
administrative action operates, the deficiency in the process of decision-
making utilised by an administrative body is to be considered rather
than the decision in itself. Interference by the courts would not be
justified except in cases where the decision in question is so illogical, or
characterized by such procedural impropriety, or is of such a nature so
as to shock the conscience of the judicial system.
The Wednesbury Principle has evolved and undergone major changes,
which have been shaped by the Supreme Court’s own jurisprudence.
Despite the significant role played by this principle in administrative
law, it has been said to have become obsolete and been replaced by the
doctrine of proportionality to provide better protection to individuals
against the exploitation by administrative authorities. However, in
recent judicial pronouncements, it has been stated that the doctrine of
proportionality is a supplement and not a substitute to the Principle of
Wednesbury Unreasonableness. This view of the Supreme Court has
been widely adopted and accepted with respect to the changing trends
in the sphere of administrative law.
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A NOTE OF THANKS
The Editorial Board, Coordinators and the Publishing Unit of the Indian
Constitutional Law Review seek to express their gratitude to all
members, contributors, advisors and well-wishers who have been
immensely important to the growth and evolution of the constitutional
law landscape of India and who continue to be involved in the discourse
surrounding it.
We express our heartfelt gratitude to all Members who have provided
their valuable time and incisive insights in the framing of this edition.
Finally, a special thank you to the editors who have played a crucial role
in the development and outcome of this publication. This would not have
been possible without every one of you.
Savyasachi Rawat
Editor-in-Chief
On behalf of the esteemed members of the Editorial Board, the
Coordinators, and the Publishing Unit.