LL.B. IV Term
Paper : LB - 401 - Constitutional Law - II
Topic 1 : Fundamental
Rights (General)
(a) ‘State’ under Article 12 -
Article 12: State u/Art 12
In this Part, unless the context otherwise
requires, "the State" includes
(i)the Government and Parliament of India
(ii) the Government and the Legislature of each
of the States and
(iii) all local or other authorities within the territory of India
Authority means
( i ) Power to make rules, bye- laws, regulations,
notifications and statutory orders.
( ii ) Power to enforce them.
Local Authority means Municipal Boards, Panchayats,
Body of Port Commissioners and others legally entitled to or entrusted by the
government, municipal or local fund.
Till about the year 1967 courts in India had taken the
view that Statutory bodies like universities, Selection Committees for
admission to Govt Colleges were not “other authorities” u/A12 CoI. In the year
1967 in Rajasthan SEB v Mohan Lal a constitution bench of the Hon’ble Apex
Court held that the expression “other authorities” is wide enough to include
within it every authority created by a statute on which powers are conferred to
carry out governmental or quasi-governmental functions & functioning within
the territory of India or under the control of the GoI
In R.D.Shetty v/s International Airport Authority, the
Court laid down five tests to be an “other authority” -
( i ) Entire share capital is owned or managed by
State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to
Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.
Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that
the test to know whether a juristic person is State is not how it has been
brought but why it has been brought.
In University of Madras v Shanta Bai (AIR 1954 Mad
67), the Madras High Court evolved the principle of “ejusdem generis” which
meant only authorities that perform governmental or sovereign functions can be
included under article 12.
In Electricity Board, Rajasthan v. Mohan Lal (AIR 1967
SC 1857), the Supreme Court held that ‘other authorities’ would include all
authorities created by the Constitution or statute on which powers are
conferred by law. It was not necessary that the statutory authority should be
engaged in performing government or sovereign functions.
In Sukdev Singh v. Bhagat Ram Sardar Singh
Raghuvanshi, (1975 (1) SCC 421), the court had to deal with the question,
whether statutory corporations such as the ONGC, IFC and LIC, came within the
definition of “the State” under article 12. The court held that the three
corporations were “the State” as the three corporations were created by
statutes, had the statutory power to make binding rules and regulations, and
were subject to pervasive government control.
In M.C. Metha v. Sri Ram Fertilizers Ltd., (1987 SCR
819), the court expanded the ambit of article 12: “primarily due to the social
consequence of our corporate structure”. The court stressed that the ambit of
article 12 needs to be enlarged so as to bring private companies also under the
discipline of fundamental rights.
Further in the case of J.P. Unni Krishnan v. State of
A.P., (1993 (1) SCC 645), the court held that private educational institutions
cannot be allowed to violate article 14 as they are performing a function in
furtherance of a state function, that is, the provision for education.
1. Som Prakash v. Union of India
Pension issue with Burmah Shell Oil Storage Ltd
– Petitioner covered by EPF & Misc provisions Act, 1952 and gratuity u/
Payment of Gratuity Act, 1972 – company was statutorily taken over by force of
the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 - Central Government
took steps to vest the undertaking in the second respondent, the Bharat
Petroleum, which then became the statutory successor of the petitioner's
employer. His pensionary rights such as he had, therefore, became claimable
from the second respondent.
A preliminary objection was raised on behalf of
the corporation that no writ would lie against the second respondent since it
is neither a government department nor a statutory corporation but just a
company.
- Settled position that any authority u/ GoI
comes within the defn of State - core fact is that the Central Government,
through section 7 chose to make over its own property to its own offspring.
Therefore, the Burmah Shell though a government company is but the alter ego of
the Central Government and must, therefore, be treated as definition ally
caught in the net of State a juristic veil worn for certain legal purposes
cannot obliterate the true character of
the entity for purposes of constitutional law -
International Airports Authority Case, Ajay Hasia Case
Tests laid down by this Court for deciding whether a body is State
within the meaning of Article 12 are :
(i) If the entire share capital of the corporation is held by Government, it would go
a long way towards indicating that the corporation is an instrumentality or
agency of the Government;
(ii) A finding of State financial support plus an unusual degree of control over
the management and policies might lead, one to characterise an operation as
State action.
(iii) The existence of deep and pervasive State
control may afford an indication that the Corporation is a State agency or
instrumentality.
(iv) Whether the corporation enjoys monopoly status which is State
conferred or State protected is a relevant factor.
(v) If the functions of the corporation
are important public functions and related to governmental functions
it would be a relevant factor in classifying the corporation as instrumentality
or agency of the Government.
(vi) If a department of Government is
transferred to a corporation, it would be a strong factor supportive of the
inference that it is an instrumentality of the State.
(vii) Where the chemistry of the corporate body
answers the test of State it comes within the definition of Article 12.
(viii) Whether the legal person is a corporation
created by a statute, as distinguished from under a statute is not an important
criterion although it may be an indicium.
Justice Pathak dissented with the majority on holding
the Bharat Petroleum as state but was in agreement with them on the principle
that the petitioner was liable for relief.
2. Pradeep Kumar Biswas v. Indian Institute
of Chemical Biology (2002) 5 SCC 111
Sabhajit Tewary case – Jr Steno – writ against CSIR
for equal pay – contended Article 14 – denied benefit by 5 judge bench - held
CSIR not a State under Article 12 CoI as it was registered under societies act.
The bench in this case overruled the decision in Sabhajit Tewary Case.
In PK Ramachandra Iyer v UoI court held that ICAR is a
state u/A12 CoI.
B S Minhas v Indian Statistical Institute – held
control of Central Govt deep & pervasive – Indian Statistical Institute
held to be a state u/Art 12 CoI.
Test propounded in Ajay Hasia were not applied in
Tekraj Vasandi v UoI (1988) 1SCC 236 and Institute of Constitution &
Parliamentary Studies (ICPS) a society registered u/ the societies act was held
not to be a state.
In Chander Mohan Khanna v NCERT the court observed
that the tests propounded in Sukhdev Singh, Ramana(Airport Authority
Case), Ajay Hasia & Som Prakash Rekhi
case are merely indicative indicia and by no means conclusive or clinching in
any case. In this NCERT was held to not be a state u/ Art 12 as its functioning
was largely autonomous.
Central Inland Water Transport Corp Ltd v Brojo Nath
Ganguly – held appellant company covered u/A12 CoI – financed by 3 Governments
– Completely under Control of Central Govt – Chairman & Board appointed by
the Central Gov.
The principle laid down in Sabhajit Tewary Case that a
society registered u/ Societies Act and a Company registered u/ Companies Act
for that reason alone does not fall under Article 12 was criticized and
overruled.
3.G. Basi Reddy v. International Crops Research
Institute, JT 2003 (2) SC 180
Refused to hold ICRISAT as a State u/ Article 12
of CoI.
4. Zee Telefilms Ltd. v. Union of India (2005) 4
SCC 649
Court refused to accept BCCI – a society regd
under the TN Societies Registration Act, 1975 as a State u/Art 12. But held
that relief against BCCI cud be sought u/A 226 in the HC.
5. State of U.P. v. Radhey Shyam Rai, 2009 (3)
SCALE 754
Held UP Ganna Kisan Sansthan to be an state u/A 12 CoI.
(b) ‘Law’ under Article 13; Also Articles 31A,
31B, 31C, 368
(i) Doctrine of Eclipse
The Doctrine of Eclipse is based on the
principle that a law which violates fundamental rights is not nullity or void
ab initio but becomes only unenforceable i.e. remains in a moribund condition.
"It is over-shadowed by the fundamental rights and remains dormant, but it
is not dead." Such laws are not wiped out entirely from the statute book.
They exist for all post transactions and for the enforcement of the rights
acquired and liabilities incurred before the commencement of the Constitution.
It is only against the citizens that they remain in a dormant or moribund
condition but they remain in operation as against non-citizens who are not
entitled to fundamental rights.
For solving such a problem, Supreme Court
formulated the doctrine of eclipse in Bhikhaji v. State of M.P. ,
AIR 1955 S.c.
ARTICLE 13
(1) All laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away
or abridges the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise
requires,—
(a) “law” includes any Ordinance, order, bye-law,
rule, regulation, notification, custom or usage having in the territory of India
(b) “laws in force” includes laws passed or made by a
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at
all or in particular areas.
(4) Nothing in this article shall apply to any
amendment of this Constitution made under article 368.
Article 31A. Saving of laws providing for
acquisition of estates, etc
( 1 ) Notwithstanding anything contained in
Article 13, no law providing for
(a) the acquisition by the State of any estate
or of any rights therein or the extinguishment or modification of any such
rights, or
(b) the taking over of the management of any
property by the State for a limited period either in the public interest or in
order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations
either in the public interest or in order to secure the proper management of
any of the corporations, or
(d) the extinguishment or modification of any
rights of managing agents, secretaries and treasurers, managing directors,
directors or managers of corporations, or of any voting rights of shareholders thereof,
or
(e) the extinguishment or modification of any
rights accruing by virtue of any agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral oil, or the premature
termination or cancellation of any such agreement, lease or licence, shall be
deemed to be void on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Article 14 or Article 19: Provided that
where such law is a law made by the Legislature of a State, the provisions of
this article shall not apply thereto unless such law, having been reserved for
the consideration of the President, has received his assent: Provided further
that where any law makes any provision for the acquisition by the State of any
estate and where any land comprised therein is held by a person under his
personal cultivation, it shall not be lawful for the State to acquire any
portion of such land as is within the ceiling limit applicable to him under any
law for the time being in force or any building or structure standing thereon
or appurtenant thereto, unless the law relating to the acquisition of such
land, building or structure, provides for payment of compensation at a rate
which shall not be less than the market value thereof
Article 31B. Validation of certain Acts and
Regulations Without prejudice to the generality of the provisions contained in
Article 31A, none of the Acts and Regulations specified in the Ninth Schedule
nor any of the provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or provision is
inconsistent with, or takes away or abridges any of the rights conferred by,
any provisions of this Part, and notwithstanding any judgment, decree or order
of any court or tribunal to the contrary, each of the said Acts and Regulations
shall, subject to the power of any competent Legislature to repeal or amend it,
continue in force.
Article 31C. Saving of
laws giving effect to certain directive principles Notwithstanding anything
contained in Article 13, no law giving effect to the policy of the State
towards securing all or any of the principles laid down in Part IV shall be
deemed to be void on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Article 14 or Article 19 and no law
containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to
such policy: Provided that where such law is made by the Legislature of a
State, the provisions of this Article shall not apply thereto unless such law,
having been reserved for the consideration of the President, has received his
assent Right to Constitutional Remedies
Article 368. Power of
Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding
anything in this Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article
(2) An amendment of this
Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each
House by a majority of the total membership of that House present and voting,
it shall be presented to the President who shall give his assent to the Bill
and thereupon the Constitution shall stand amended in accordance with the terms
of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article
55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part
V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in
the Seventh Schedule, or
(d) the representation
of States in Parliament, or
(e) the provisions of
this article, the amendment shall also require to be ratified by the
Legislature of not less than one half of the States by resolution to that
effect passed by those Legislatures before the Bill making provision for such
amendment is presented to the President for assent
(3) Nothing in Article
13 shall apply to any amendment made under this article
(4) No amendment of this
Constitution (including the provisions of Part III) made or purporting to have
been made under this article whether before or after the commencement of
Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be
called in question in any court on any ground
(5) For the removal of
doubts, it is hereby declared that there shall be no limitation whatever on the
constituent power of Parliament to amend by way of addition, variation or
repeal the provisions of this Constitution under this article
6. Keshavan
Madhava Menon v. State of Bombay
Proceedings against appellant for an offence
punishable under S18 Press (Emergency Powers) Act 1931 in respect of a pamphlet
published in 1949. Appellant contended that it was inconsistent with the
Fundamental rights conferred by the CoI & thrfr had become void u/Art 13(1)
after Jan 1, 1950. Sc rejected this contention & held that Art 13(1) had no
retrospective effect. The article did not have the effect of rendering the laws
which existed on the date of the commencement od the Constitution Void Ab
Initio for all purposes if they were inconsistent with the Fundamental rights.
Das J. said “Article 13(1) cannot be read as obliterating the entire operation
of the inconsistent laws, or to wipe them out altogether from the statute book,
for to do so will be to give them (Fundamental Rights) retrospective effect
which, we have said, they do not possess. Such laws exist for all past
transactions & for enforcing all rights & liabilities accrued before
the date of the Constitution.
7. State
of Gujarat
Question: Whether a law which takes away or abridges
the fundamental right of citizens u/A 19(1)(f) would be void & therefore non est as regards
non-citizens.
Speaking for the court Mathew J. after reviewing the
earlier decisions [Keshavan Madhav Menon,
Behram Khurshid Pesaka v St of Bom, Bhikaji Case, Deep Chand v St of UP,
Mahendra Lal Jaini v St of UP] observed that just as pre Constitution law
taking away or abridging the fundamental rights u/A 19 remained operative after
Constitution came into force as regards non citizens because it was not in
contravention of any of their fundamental rights so also a post Constitution
law offending Art 19 remained operative as against non-citizens because it was
not in contravention of any of their Fundamental rights.
8. Bhikaji
Narain Dhakras v. State of M. P., AIR 1955 SC 781 [discussed above]
(ii) Waiver of Fundamental Rights
9. Bashesher
Nath v. CIT, AIR 1959 SC 149
The petitioner whose matter had been referred to
the Investigation Commission u/S 5(1) of the Taxation of Income(Investigation
Commission) Act 1947 was found to have concealed a large amount of his income.
The petitioner in order to escape heavier penalty agreed as a settlement u/S
8-A to pay Rs 3 Lakhs in monthly instalments by way of arrears of tax &
penalty. In the meanwhile the SC in
another case held that S5(1) of the Taxation of Income Act 1947 was ultra vires
the Constitution as it was inconsistent with Art 14. The assessee in view of
the ultra vires character of the settlement invited the Court to hold that he
was absolved of his obligation under the settlement. The respondent, on the
other hand contended that even if S5(1) was invalid the assessee had waived his
right guaranteed u/Art 14. SR Das CJ. & Kapur J. confined their decision to
Fundamental rights actually involved in the given case and held that the right
under Article 14 could not be waived. Bhagwati & Subba Rao JJ. Held that it
was not open for a citizen to waive any of the fundamental right guaranteed u/
the Constitution. S K Das J. who dissented held (on the analogy of the American
Constitution) that FR can be waived provided such waiver is not forbidden by
law and does not contravene public policy or public morals.
(iii) Severability
– Only that part of the law will be declared invalid which is inconsistent with
the fundamental rights and the rest of the law will stand. However, invalid
part of the law will be severed only if it is severable, i.e., if after
separating the invalid part, the valid part is capable of giving effect to the
legislature’s intent, then only it will survive otherwise the court shall
declare the entire law as invalid.
Purpose not only to restrict but also to enlarge
the application of law. – Hon’ble
10. State
of Bombay v. F.N. Balsara, AIR 1951 SC 318
8 Sections of the Bombay Prohibition Act 1949,
were held ultra vires on the grounds that they infringed the FR of the citizens
. But the act minus the invalid provisions was allowed to stand.
11. RMDC
v. Union of India, AIR 1957 SC 628
In determining whether the valid parts of the
statute are severable from the invalid parts the intention of the legislature
is the determining factor. [i.e. would the legislature have enacted that is
remaining without the invalid parts? ]
The petitioners, who were promoting 'and
conducting prize competitions in the different States of India, challenged the
constitutionality of ss. 4 and 5 of the Prize Competitions Act (42 of 955) and
rr. xi and 12 framed under S. 20 of the Act. Their contention was that 'prize
competition' as defined in S. 2(d) of the Act included not merely competitions
that were of a gambling nature but also those in which success depended to a
substantial degree on skill and the sections and the rules violated their fundamental right to carry on business,
and were unsupportable under Art. 19(6) of the Constitution, that they
constituted a single inseverable enactment and,
consequently, must fail entirely. On behalf of the Union of India this was
controverted and it was contended that the definition, properly construed,
meant and included only such competitions as were of a gambling nature, and
even if that was not so, the impugned provisions, being severable in their application, were valid as
regards gambling competitions.
Held, that the validity of the restrictions
imposed by SS. 4 and 5 and rr. ii and 12 of the Act as regards gambling
competitions was no longer open to challenge under Art. 19(6) of the Constitution in view of the, decision of this Court that gambling did not
fall within the purview of Art. 19(i) (g) of the Constitution.
On a proper construction there could be no doubt
that the Prize Competitions Act (42 Of 1955), in defining the word 'prize competition'
as it did in S. 2(d), had in view only such competitions as were of a gambling
nature and no others.
In interpreting an enactment the Court should
ascertain the intention of the legislature not merely from a literal meaning of
the words used but also from such matters as the history of the legislation,
its purpose and the mischief it seeks to suppress.
Even assuming that prize competition as defined
by S. 2(d) of the Act included not merely gambling competitions but also others in which success depended
to a considerable degree on skill, the restrictions imposed by ss. 4 and 5 and
rr. ii and 12 of the Act were clearly severable in their application to the
two, distinct and separate categories of competitions and, consequently, could
not be void as regards gambling competitions.
The principle of severability is applicable to
laws enacted by legislatures with limited powers of legislation, such as those in
a Federal Union, which fall partly within and partly outside their legislative
competence, where the question arises as to whether the valid can be separated
from the invalid parts and that is a question which has to be decided by the
Court on a consideration of the entire provisions of the Act. There is,
however, no basis for the contention that the principle applies only when the
legislature exceeds its powers as regards the subject-matter of legislation and
not when it contravenes any constitutional prohibitions.
(c) Power
of Parliament to modify the fundamental rights (Article 33)
Article 33. Power of Parliament to modify the
rights conferred by this Part in their application etc
Parliament may, by law, determine to what extent
any of the rights conferred by this Part shall, in their application to,
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the
maintenance of public order; or
(c) persons employed in any bureau or other
organisation established by the State for purposes of intelligence or counter
intelligence; or
(d) persons employed in, or in connection with,
the telecommunication systems set up for the purposes of any Force, bureau or
organisation referred to in clauses (a) to (c), be restricted or abrogated so
as to ensure the proper discharge of their duties and the maintenance of
discipline among them
(d) Martial
Law (Article 34)
Article 34. Restriction on rights conferred by
this Part while martial law is in force in any area.
Notwithstanding anything in the foregoing
provisions of this Part, Parliament may by law indemnify any person in the
service of the Union or of a State or any other person in respect of any act
done by him in connection with the maintenance or restoration of order in any
area within the territory of India where martial law was in force or validate
any sentence passed, punishment inflicted, forfeiture ordered or other act done
under martial law in such area.
Topic 2 : Right to Equality
(Articles 14 – 18)
(a) Equality among Equals; Treating un-equals as
equals violates equality clause
(b) Classification as such not completely
prohibited: Reasonable Classification Permissible
(c) Single Person may be treated as a separate
class. [Chiranjit Lal Case]
(d) Establishment of Special Courts
(e) Conferment and/or exercise of discretionary
or arbitrary power is antithesis of right to equality
(f) Distribution of state largesse
(g) Special provisions for women and children;
requirements relating to residence; requirement of a particular religion being
professed by the incumbent of an office related to a religious or
denominational institution
(h) Protective Discrimination - Reservations in
appointments and promotions; Special provisions for socially and educationally
backward classes of citizens and for Scheduled Castes and Scheduled Tribes
(i) The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 [ India adopted proclamation
of Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the
Economic and Social Commission for Asia and Pacific held at Beijing on 1st to
5th December, 1992 ]
(j) The Central Educational Institutions
(Reservation in Admission) Act, 2006 [An Act to provide for the reservation in admission of the students
belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward
Classes of citizens, to certain Central Educational Institutions established,
maintained or aided by the Central Government, and for matters connected
therewith or incidental thereto. ]
Articles
14 – 18
Article 14. Equality before law.
The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.
Article 15. Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.
(2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to-
(a) Access to shops, public restaurants, hotels and
places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State
from making any special provision for women and children.
1[(4) Nothing in this article or in clause (2) of
article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes.]
1. Added by the Constitution (First Amendment) Act,
1951, s. 2.
Article 16. Equality of opportunity in matters of
public employment.
(1) There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the State.
(2) No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment or
office under the State.
(3) Nothing in this article shall prevent Parliament
from making any law prescribing, in regard to a class or classes of employment
or appointment to an office 1[under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence
within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State
from making any provision for the reservation of appointment or posts in favour
of any backward class of citizen which, in the opinion of the State, is not
adequately represented in the services under the State.
2[(4A) Nothing in this article shall prevent the State
from making any provision for reservation 4[in matters of promotion to any class]
or classes of posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.]
3[(4B) Nothing in this article shall prevent the State
from considering any unfilled vacancies of a year which are reserved for being
filled up in that year in accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of vacancies to be filled
up in any succeeding year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they are being
filled up for determining the ceiling of fifty per cent. reservation on total
number of vacancies of that year.]
(5) Nothing in this article shall affect the operation
of any law which provides that the incumbent of an office in connection with
the affairs of any religious or denominational institution or any member of the
governing body thereof shall be a person professing a particular religion or
belonging to a particular denomination.
1. Subs. by the Constitution (Seventh Amendment) Act,
1956, s. 29 and Sch., for “under any State specified in the First Schedule or
any local or other authority within its territory, any requirement as to
residence within that State”.
2. Ins. by the Constitution (Seventy-seventh
Amendment) Act, 1995,s. 2. (w.e.f. 17-6-1995).
3. Ins. by the Constitution (Eighty-first Amendment)
Act, 2000, s.2 (w.e.f. 09-06-2000)
4. Subs. by the Constitution (Eighty-fifth Amendment)
Act, 2001, sec. 2 (w.r.e.f. 17-6-1995).
Article 17. Abolition of Untouchability.
“Untouchability” is abolished and its practice in any
form is forbidden. The enforcement of any disability rising out of
“Untouchability” shall be an offence punishable in accordance with law.
Article 18. Abolition of titles.
(1) No title, not being a military or academic
distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from
any foreign State.
(3) No person who is not a citizen of India shall,
while he holds any office of profit or trust under the State, accept without
the consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust
under the State shall, without the consent of the President, accept any
present, emolument, or office of any kind from or under any foreign State.
12. Chiranjit
Lal Chaudhary v. Union of India, AIR 1951 SC 41
Petitioner approached the SC for the protection
of his FR u/ Art 14 & Art 31 against the enforcement of the Sholapur
Spinning & Weaving Co (Emergency Provision) Act, 1950. The petitioner was
an ordinary shareholder of the Sholapur Spinning & Weaving Co. Ltd. The
company through its directors had been managing and running a textile mill of
the same name. In 1949 on account of mismanagement & neglect of the affairs
of the Company, a situation had arisen that brought about the closing down of
the mill. The action of the company prejudicially affected the production of an
essential commodity, apart from causing serious unemployment amongst certain
sections of the community. The Central Govt thereupon issued an Ordinance which
was later replaced by the above mentioned Act. By this Act, the management
& administration of the assets of the Company was placed under the control
& directors appointed by the Govt. The old directors were dismissed and the
assets of the Company were handed over to the custody of the new management. Petitioner
contended that the impugned Act infringed right to equality guaranteed u/Art 14
of the constitution vis-à-vis other companies and their shareholder.
SC dismissed the petition and held that a law
may be constitutional even if it applies to a single individual if, on account
of some special circumstances or reasons applicable to him and not applicable
to others, that single individual may be treated as a class by itself and that
unless that it was shown that there were other companies similarly
circumstanced, the legislation must be presumed to be constitutional. Sholapur Co formed a class by itself because
the mismanagement of the Company’s affairs prejudicially affected the
production of an essential commodity & had caused serious unemployment in a
section of the community.
13. State
of W. B. v. Anwar Ali Sarkar, AIR 1952 SC 75
SC by majority invalidated S5(1) of WB Special
Courts Act 1950 because it conferred arbitrary powers on the Govt to classify
offences or classes of offenses or classes of cases or cases at its pleasure
and the Act did not lay down any policy or guidelines for the exercise of its
discretion to classify offences or cases. As regards the reference in the
Preamble to the necessity for ‘speedier trial of offences’, it was held that
the expression ‘speedier trial’ was too vague, uncertain and illusive to afford
a basis for rational classification. Das
J. held the section to be partially invalid insofar as it empowered the
government to direct cases as distinguished from classes of cases. According to
him, the provision for speedier trial of certain offences was the object of the
Act which was a distinct thing from the intelligible differentia which had to
be the basis for the classification. The differentia and the object being
different elements, the object by itself could not be the basis of
classification of offences or cases.
The majority ruled the case against State of
West Bengal and held the West Bengal Law void as it gave arbitrary power to the
executive and the legislature to decide which cases are to go a special Court
and which ones are to be decided by a normal Court without making any
classification in the law itself.
14. Kathi
Raning Rawat v. State of Saurashtra, AIR 1952 SC 123
S11 of Saurashtra State Public Safety Measures (
3rd Amendment) Ordinance, 1949, which was similar to S5(1) of WB Spl
Courts Act, 1950 was impugned. It referred to 4 distinct categories namely
offences, classes of offences, cases & classes of cases & empowered the
State Govt to direct any one or more of these categories to be tried by the
Special Court constituted under the Ordinance. The majority held that the
Preamble to the Ordinance which referred to the need to provide for public
safety, maintenance of public order & the preservation of peace &
tranquillity in the State of Saurashtra together with the affidavit filed by
the State Govt explaining the circumstances under which the impugned order was
passed afforded a basis for distinguishing this case from the Anwar Ali Sarkar
case since it was clear that the Govt had sufficient guidance for classifying
offences, classes of offences or classes of cases for being tried by the
special procedure. So therefore according to the majority S11 of the Ordinance
insofar as it authorized the State Govt to direct offences, classes of offences
or classes of cases to be tried by the Special courts was not violative of
Article 14 CoI.
15. Indra
Sawhney v. Union of India, AIR 1993 SC 477
Second Backward Commission
Eleven 'Indicators' or 'criteria' for
determining social and educational backwardness. These 11 'Indicators' were
grouped under three broad heads, i.e., Social, Educational and Economic. They
are:-
A. Social:
(i) Castes/Classes considered as socially
backward by others.
(ii) Castes/Classes which mainly depend on
manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females
and 10% males above the state average get married at an age below 17 years in
rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females
in work is at least 25% above the State average.
B. Educational:
(v) Castes/Classes where the number of children
in the age group of 5-15 years who never attended school is at least 25% above
the State average.
(vi) Castes/Classes where the rate of student
drop-out in the age group of 5-15 years is at least 25% above the State
average.
(vii) Castes/Classes amongst whom the proportion
of matriculates is at least 25% below the State average.
C. Economic:
(viii) Castes/Classes where the average value of
family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families
living in Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking
water is beyond half a kilometer for more than 50% of the households.
(xi) Castes/Classes where the number of
households having taken consumption loan is at least 25% above the State
average.
11.24. As the above three groups are not of
equal importance for our purpose, separate weightage was given to 'Indicators'
in each group. All the Social 'Indicators' were given a weightage of 3 points
each. Educational 'Indicators' a weightage of 2 points each and Economic
'Indicators' a weightage of one point each. Economic, in addition to Social and
Educational Indicators, were considered important as they directly flowed from
social and educational backwardness. This also helped to highlight the fact
that socially and educationally backward classes are economically backward
also.
11.25. It will be seen that from the values
given to each Indicators, the total score adds upto 22. All these 11 Indicators
were applied to all the castes covered by the survey for a particular State. As
a result of this application, all castes which had a score of 50 percent (i.e.,
11 points) or above were listed as socially and educationally backward and the
rest were treated as 'advanced'.
Issues reframed by the Court
1(a) Whether the 'provision' contemplated by
Article 16(4) must necessarily be made by the legislative wing of the State?
The very use of the word "provision" in
Article 16(4) is significant. Whereas Clauses (3) and (5) of Article 16 - and
Clauses (2) to (6) of Article 19 - use the word "Law", Article 16(4)
uses the word "provision". Accordingly, we hold, agreeing with
Balaji, that the "provision" contemplated by Article 16(4) can also
be made by the executive wing of the Union or of the State, as the case may be,
as has been done in the present case. Bajaji has been followed recently in
Comptroller and Auditor General of India v. Mohan Lal Mehrotra . With respect
to the argument of abuse of power by the political executive, we may say that
there is adequate safeguard against misuse by the political executive of the
power under Article 16(4) in the provision itself
(b) If the answer to Clause (a) is in the
negative, whether an executive order making such a provision is enforceable
without incorporating it into a rule made under the proviso to Article 309?
Sri Ram Jethmalani contended that A16(4) is
merely an enabling provision and that it has to be made a rule under A309 and
an executive order is not enforceable.
Held by the Court :- until a law is made or rules are issued under
Article 309 with respect to reservation in favour of backward classes, it would
always be open to the Executive (Government) to provide for reservation of
appointments/posts in favour of Backward Classes by an executive order. We
cannot also agree with Sri Jethmalani that the impugned Memorandums should be
treated as Rules made under the proviso to Article 309. There is nothing in
them suggesting even distantly that they were issued under the proviso to
Article 309. They were never intended to be so, nor is that the stand of the
Union Government before us. They are executive orders issued under Article 73
of the Constitution read with Clause (4) of Article 16. The mere omission of a
recital "in the name and by order of the President of India" does not
affect the validity or enforceability of the orders, as held by this Court
repeatedly.
2(a) Whether Clause (4) of Article 16 is an
exception to Clause (1) of Article 16?
In Balaji
it was held - "there is no doubt that Article 15(4) has to be read as a
proviso or an exception to Articles 15(1) and 29(2)". It was observed that
Article 15(4) was inserted by the First Amendment in the light of the decision
in Champakam, with a view to remove the defect pointed out by this Court
namely, the absence of a provision in Article 15 corresponding to Clause (4) of
Article 16. Following Balaji it was held by another Constitution Bench (by
majority) in Devadasan - "further this Court has already held that Clause
(4) of Article 16 is by way of a proviso or an exception to Clause (1)".
Subbarao, J., however, opined in his dissenting opinion that Article 16(4) is
not an exception to Article 16(1) but that it is only an emphatic way of
stating the principle inherent in the main provision itself. Be that as it may,
since the decision in Devadasan, it was assumed by this Court that Article
16(4) is an exception to Article 16(1). This view, however, received a severe
set-back from the majority decision in State
of Kerala and Ors. v. N.M. Thomas . Though the minority (H.R. Khanna
and A.C. Gupta, JJ.) stuck to the view that Article 16(4) is an exception, the
majority (Ray, C.J., Mathew, Krishna Iyer and Fazal Ali, JJ.) held that Article
16(4) is not an exception to Article 16(1) but that it was merely an emphatic
way of stating a principle implicit in Article 16(1).
(b) Whether Clause (4) of Article 16 is exhaustive
of the special provisions that can be made in favour of 'backward class of
citizens'? Whether it is exhaustive of the special provisions that can be made
in favour of all sections, classes or groups?
Court agreeing with Justice Beg and the majority
in NM Thomas case held that Clause (4) of Article 16 is exhaustive of the
special provisions that can be made in favour of "the backward class of
citizens". Backward Classes having been classified by the Constitution
itself as a class deserving special treatment and the Constitution having
itself specified the nature of special treatment, it should be presumed that no
further classification or special treatment is permissible in their favour
apart from or outside of Clause (4) of Article 16.
(c) Whether reservations can be made under
Clause (1) of Article 16 or whether it permits only extending of
preferences/concessions?
Whether Article 16(4) is exhaustive of the very
concept of reservations?
In other words, the question is whether any
reservations can be provided outside Clause (4) i.e., under Clause (1) of
Article 16. There are two views on this aspect. On a fuller consideration of
the matter, we are of the opinion that Clause (4) is not, and cannot be held to
be, exhaustive of the concept of reservations; it is exhaustive of reservations
in favour of backward classes alone. Merely because, one form of classification
is stated as a specific clause, it does not follow that the very concept and
power of classification implicit in Clause (1) is exhausted thereby. To say so
would not be correct in principle. But, at the same time, one thing is clear.
It is in very exceptional situations and not for all and sundry reasons - that
any further reservations, of whatever kind, should be provided under Clause
(1). In such cases, the State has to satisfy, if called upon, that making such
a provision was necessary (in public interest) to redress a specific situation.
The very presence of Clause (4) should act as a damper upon the propensity to
create further classes deserving special treatment. The reason for saying so is
very simply. If reservations are made both under Clause (4) as well as under
Clause (1), the vacancies available for free competition as well as reserved
categories would be correspondingly whittled down and that is not a reasonable
thing to do.
Whether Clause (1) of Article 16 does not permit
any reservations?
For the reasons given in the preceding paragraphs
we must reject the argument that Clause (1) of Article 16 permits only
extending of preferences, concessions and exemptions, but does not permit
reservation of appointments/posts. As pointed out in para (54) the argument
that no reservations can be made under Article 16(1) is really inspired by the
opinion of Powell, J. in Bakke. But in the very same paragraph we had pointed
out that it is not the unanimous opinion of the Court. In principle, we see no
basis for acceding to the said contention. What kind of special provision
should be made in favour of a particular class is a matter for the State to
decide, having regard to the facts and circumstances of a given situation -
subject, of course, to the observations in the preceding paragraph.
3(a) What does the expression 'backward class of
citizens' in Article 16(4) means?
What does the expression "Backward Class of
Citizens" in Article 16(4) signifies and how should they be identified?
This has been the single most difficult question
tormenting this nation. The expression is not defined in the Constitution. What
does it mean then?
Court evaluated several
opinions placed before it.
Sri NA
Pakhiwala(supported by several other counsel) – secular, casteless society a
basic feature of the CoI, caste is a prohibitive ground of distinction u/CoI.
It ought to be erased altogether from Indian Society. It can never be the basis
of determining backward classes referred in A16(4). Report of the Mandal
Commission which has used caste and class as synonymous has identified backward
class solely as backward caste and has ignored all other considerations
including poverty. Report has divided India into fwd & Backward with
backward (52%). Acceptance of report would spell disaster to the unity and the
integrity of the nation. If half of the posts are reserved for backward
classes, it would seriously jeopardise the efficiency of the administration,
educational system, and all other services resulting in backwardness of the
entire nation. Merit will disappear by deifying backwardness. Article 16(4) is
broader than Article 15(4). The expression "backward class of citizens"
in Article 16(4) is not limited to "socially and educationally backward
classes" in Article 15(4). The impugned Memorandums, based on the said
report must necessarily fall to the ground along with the Report.
Sri KK Venugopal appearing for petitioner adopted
a slightly different approach while reiterating that the expression
"backward classes of citizens" in Article 16(4) cannot be construed
as backward castes. According to him, backwardness may be social and
educational and may also be economic. He relied upon the provision
in Clause (2) of Article 38 and Article 46 to say that the objective is to
minimize the inequalities in income not only among individuals but also among
groups of persons and to help the weaker sections of the society. The economic
criterion is an important one and must be applied in determining backward
classes and also for excluding those sections or identified groups who may for
the sake of convenience be referred to as the 'creamy layer'. Since castes do
not exist among Muslims, Christians and Sikhs, caste can never be the basis of
identification.
Smt Shyamala Pappu also took the stand that caste
can never be the basis for identification. According to her, survey to identify
backward classes should be from individual to individual; it cannot be
caste-wise. To the same effect are the submissions of Sri P.P. Rao appearing
for the Supreme Court Bar Association. According to him, the only basis for
identifying backward classes should be occupation-cum-means as was done in the
State of Karnataka at a particular stage which aspect is dealt with and
approved by this Court in Chitralekha and Ors. v. State of Mysore .
Other end of the spectrum
stands Sri Ram Jethmalani, counsel appearing for the State of Bihar supported
by several other counsel. According to him, backward castes in Article 16(4)
meant and means only the members of Shudra casts which is located between the
three upper castes (Brahmins, Kshatriyas and Vaishyas) and the out-castes
(Panchamas) referred to as Scheduled Castes. According to him, Article 16(4)
was conceived only for these "middle castes" i.e., castes categorised
as shudras in the caste system and for none else. These backward castes have
suffered centuries of discrimination and disadvantage, leading to their
backwardness. The expression "backward classes" does not refer to any
current characteristic of a backward caste save and except paucity or
inadequacies of representation in the apparatus of the Government. Poverty is
not a necessary criterion of backwardness; in is in fact irrelevant. The
provision for reservation is really a programme of historical compensation. It
is neither a measure of economic reform nor a poverty alleviation programme.
The learned Counsel further submitted that it is for the State to determine who
are the backward classes; it is not a matter for the court. The decision of the
Government is not judicially reviewable. Even if reviewable, the scope of
judicial review is extremely limited - to the only question whether the
exercise of power is a fraud on the Constitution. The learned Counsel referred
to certain American decisions to show that even in that country several
programmes of affirmative action and compensatory discrimination have been
evolved and upheld by courts.
Dr. Rajiv Dhawan, learned Counsel appearing for
Srinarayana Dharama Paripalana Yogam (an association of Ezhavas in Kerala)
submitted that Article 16(4) and 15(4) occupy different fields and serve
different purposes. Whereas Article 15(4) contemplates positive action
programmes, Article 16(4) enables the State to undertake schemes of positive
discrimination. For this reason, the class of intended beneficiaries under both
the clauses is different. The social and educational backwardness which is the
basis of identifying backwardness under Article 15(4) is only partly true in
the case of 'backward class of citizens' in Article 16(4). The expression
"any backward class of citizens" occurring in Article 16(4) must be
understood in the light of the purpose of the said clause namely, empowerment
of those groups and classes which have been kept out of the administration -
classes which have suffered historic disabilities arising from discrimination
or disadvantage or both and who must now be provided entry into the
administrative apparatus. In the light of the fact that the Scheduled Castes
and Scheduled Tribes were also intended to be beneficiaries of Article 16(4)
there is no reason why caste cannot be an exclusive criteria for determining
beneficiaries under Article 16(4). Counsel emphasised the fact that Article
16(4) speaks of group protection and not individual protection.
Sri R.K. Garg appearing for the Communist Party
of India, an Intervenor, submitted that caste plus poverty plus location plus
residence should be the basis of identification and not mere caste. According
to the learned Counsel, a national concensus is essential to introduce
reservations for 'orther backward classes' under Article 16(4) and that efforts
must be made to achieve such a concensus.
Sri Siva Subramanium appearing for the State of
Tamil Nadu supported the Mandal Commission Report in its entirety.
Sri P.S. Poti appearing for the State of Kerala
supported the identification of backward classes solely and exclusively on the
basis of caste. He submitted that the caste system is scientifically organised
and practiced in Kerala and, therefore, furnishes a perfectly scientific basis
for identification of backward classes. He submitted that besides the vice of
untouchability, another greater vice of 'unapproachability' was also being
practiced in that State.
Sri Ram Awadesh Singh, M.P., President of Lok Dal
and President of All India Federation of Backward Classes, Scheduled Castes,
Scheduled Tribes and Religious minorites submitted that caste should be the
sole criteria for determining backwardness. He referred to centuries of
injustice meted out by upper castes to shudras and panchamas and submitted that
these castes must now be given a share in the governance of the country which
alone will assure their dignity besides instilling in them a sense of
confidence and a spirit of competition.
Sri K.Parasaran, learned
Counsel appearing for the Union of India urged the following submissions:
(1) The reservation
provided for by Clause (4) of Article 16 is not in favour of backward citizens,
but in favour of backward class of citizens. What is to be identified is
backward class of citizens and not citizens who can be classified as backward.
The homogeneous groups based on religion, race, caste, place of birth etc. can form
a class of citizens and if that class is backward there can be a reservation in
favour of that class of citizens.
(2) Caste is a relevant
consideration. It can even be the dominant consideration. Indeed, most of the
lists prepared by the States are prepared with reference to and on the basis of
castes. They have been upheld by this Court.
(3) Article 16(2)
prohibits discrimination only on any or all of the grounds mentioned therein. A
provision for protective discrimination on any of the said grounds coupled with
other relevant grounds would not fall within the prohibition of Clause (2). In
other words, if reservation is made in favour of backward class of citizens the
bar contained in Clause (2) is not attracted, even if the backward classes are
identified with reference to castes. The reason is that the reservation is not
being made in favour of castes simplicitor but on the ground that they are
backward castes/classes which are not adequately represented in the services of
the State.
(4) The criteria of
backwardness evolved by Mandal Commission is perfectly proper and
unobjectionable. It has made an extensive investigation and has prepared a list
of backward classes. Even if there are instances of under-inclusion or
over-inclusion, such errors do not vitiate the entire exercise. Moreover,
whether a particular caste or class is backward or not and whether it is
adequately represented in the services of the State or not are questions of
fact and are within the domain of the executive decision.
Held - a 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 homogenous class. Endogamy is its main characteristics. Its
social status and standing depends upon the nature of the occupation followed
by it. Lowlier the occupation, lowlier the social standing of the class in the
graded hierarchy. In rural India, occupation-caste nexus is true even today. A
few members may have gone to cities or even abroad but when they return - they
do, barring a few exceptions they go into the same fold again. It doesn't
matter if he has earned money. He may not follow that particular occupation.
Still, the label remains. His identity is not changed. For the purposes of
marriage, death and all other social functions, it is his social class - the
caste - that is relevant. It is a matter of common knowledge that an
overwhelming majority of doctors, engineers and other highly qualified people
who go abroad for higher studies or employment, return to India and marry a
girl from their own caste. Even those who are settled abroad come to India in
search of brides and bridegrooms for their sons and daughters from among their
own caste or community. As observed by Dr. Ambedkar, a caste is an enclosed
class and it was mainly these classes the Constituent Assembly had in mind
though not exclusively - while enacting Article 16(4). Urbanisation has to some
extent broken this caste- occupation nexus but not wholly. If one sees around
himself, even in towns and cities, a barber by caste continues to do the same
job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries
on the same job though he may have a laundry of his own. May be some others too
carry on the profession of barber or washerman but that does not detract from
the fact that in the case of an over-whelming majority, the caste-occupation
nexus subsists. In a rural context, of course, a member of barber caste
carrying on the occupation of a washerman or vice versa would indeed be a
rarity - it is simply not done. There, one is supposed to follow his caste
occupation, ordained for him by his birth. 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. 'Caste-occupation-poverty'
cycle is thus an ever present reality. In rural India, it is strikingly
apparent; in urban centers, there may be some dilution. But since rural India
and rural population is still the overwhelmingly predominant fact of life in
India, the reality remains. All the decisions since Balaji speak of this
'caste-occupation-poverty' nexus. The language and emphasis may very but the
theme remains the same. This is the stark reality notwithstanding all our
protestations and abhorrence and all attempts at weeding out this phenomenon.
We are not saying it ought to be encouraged. It should not be. It must be
eradicated. That is the ideal - the goal. But any programme towards betterment
of these sections-classes of society and any programme designed to eradicate
this evil must recognise this ground reality and attune its programme
accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn't
help. One cannot fight his enemy without recognizing him. The U.S.Supreme Court
has said repeatedly, if race be the basis of discrimination - past and present
- race must also form the basis of redressal programmes though in our
constitutional scheme, it is not necessary to go that far. Without a doubt, an
extensive restructuring of socio-economic system is the answer. That is indeed
the goal, as would be evident from the preamble and Part IV (Directive
Principles). But we are concerned here with a limited aspect of equality
emphasised in Article 16(4) - equality of opportunity in public employment and
a special provision in favour of backward class of citizens to enable them to
achieve it.
(b) Whether backward classes can be identified
on the basis and with reference to caste alone?
Identification of "backward class of
citizens".
Held :- the fact remains that one has to begin
somewhere - with some group, class or section. There is no set or recognised
method. There is no law or other statutory instrument prescribing the
methodology. The ultimate idea is to survey the entire populace. If so, one can
well begin with castes, which represent explicit identifiable social
classes/groupings, more particularly when Article 16(4) seeks to ameliorate
social backwardness. What is unconstitutional with it, more so when caste,
occupation, poverty and social backwardness are so closely inter-twined in our
society? [Individual survey is out of question, since Article 16(4) speaks of
class protection and not individual protection]. This does not mean that one can
wind up the process of identification with the castes. Besides castes (whether
found among Hindus or others) there may be other communities, groups, classes
and denominations which may qualify as backward class of citizens. Eg Muslims
in Karnataka & Christians in Kerala identified as backward by their
respective state governments.
No such thing as a standard or model
procedure/approach. It is for the authority (appointed to identify) to adopt
such approach and procedure as it thinks appropriate, and so long as the
approach adopted by it is fair and adequate, the court has no say in the
matter. The only object of the discussion in the preceding para is to emphasise
that if a Commission/Authority begins its process of identification with castes
(among Hindus) and occupational groupings among others, it cannot by that
reason alone be said to be constitutionally or legally bad. We must also say
that there is no rule of law that a test to be applied for identifying backward
classes should be only one and/or uniform. In a vast country like India, it is
simply not practicable. If the real object is to discover and locate
backwardness, and if such backwardness is found in a caste, it can be treated
as backward; if it is found in any other group, section or class, they too can
be treated as backward.
Whether the backwardness in Article 16(4) should
be both social and educational?
Since Balaji decision it was assumed that it has
been assumed that the backward class of citizens contemplated by Article 16(4)
is the same as the socially and educationally backward classes, Scheduled
Castes and Scheduled Tribes mentioned in Article 15(4). Though Article 15(4)
came into existence later in 1951 and Article 16(4) does not contain the
qualifying words 'socially and educationally' preceding the words
"backward class of citizens" the same meaning came to be attached to
them.
Disagreeing with the
above view the court Held that Clause (4) of Article 16 does not contain the
qualifying words "socially and educationally" as does Clause (4) of
Article 15. It may be remembered that Article 340 (which has remained
unamended) does employ the expression 'socially and educationally backward
classes' and yet that expression does not find place in Article 16(4). The
reason is obvious: "backward class of citizens" in Article 16(4)
takes in Scheduled Tribes, Scheduled Castes and all other backward classes of
citizens including the socially and educationally backward classes. Thus,
certain classes which may not qualify for Article 15(4) may qualify for Article
16(4).
Object of Article 16(4)
was "empowerment" of the backward classes.
The S.E.B.Cs. referred to
by the impugned Memorandums are undoubtedly 'backward class of citizens' within
the meaning of Article 16(4).
(c) Whether a class, to be
designated as a backward class, should be situated similarly to the
S.Cs./S.Ts.?
In Balaji it was held "that the backward
classes for whose improvement special provision is contemplated by Article
15(4) are in the matter of their backwardness comparable to Scheduled Castes
and Scheduled Tribes." The correctness of this observation is questioned
by the counsel for the respondents. Reliance is placed upon the observations of
Chinnappa Reddy, J. in Vasant Kumar (at page 406) where, dealing with the above
observations in Balaji, the learned Judge said:
We do not think that these observations were
meant to lay down any proposition that the socially Backward Classes were those
classes of people, whose conditions of life were very nearly the same as those
of the Scheduled Castes and Tribes....There is no point in attempting to
determine the social backwardness of other classes by applying the test of
nearness to the conditions of existence of the Scheduled Castes. Such a test
would practically nullify the provision for reservation for socially and
educationally Backward Classes other than Scheduled Castes and Tribes.
Court held - It must be left to the
Commission/Authority appointed to identify the backward classes to evolve a
proper and relevant criterion and test the several groups, castes, classes and
sections of people against that criteria. If, in any case, a particular caste
or class is wrongly designated or not designated a backward class, it can
always be questioned before a court of law as well.
(d) Whether the 'means' test can be applied in
the course of identification of backward classes? And if the answer is yes,
whether providing such a test is obligatory?
'Means' test and 'creamy layer': 'Means test' in
this discussion signifies imposition of an income limit, for the purpose of
excluding persons (from the backward class) whose income is above the said
limit. This submission is very often referred to as "the creamy
layer" argument.
Court directed the
Government of India to specify the basis of exclusion - whether on the basis of
income, extent of holding or otherwise - of 'creamy layer'. four months – time
limit. On such specification persons falling within the net of exclusionary
rule shall cease to be the members of the Other Backward Classes (covered by
the expression 'backward class of citizens') for the purpose of Article 16(4).
Summary of Q3 Question No. 3.(a) a caste can
be an quite often is a social class in India. If it is backward socially, it
would be a backward class for the purposes of Article 16(4). Among non-Hindus,
there are several occupational groups, sects and denominations, which for
historical reasons are socially backward. They too represent backward social
collectives for the purposes of Article 16(4). (b) Neither the Constitution nor
the law prescribe the procedure or method of identification of backward
classes. Nor is it possible or advisable for the court to lay down any such
procedure or method. It must be left to the authority appointed to identify. If
can adopt such method/procedure as it thinks convenient and so long as its
survey covers the entire populace, no objection can be taken to it.
Identification of the backward classes can certainly be down with reference to
castes among, and along with, other groups, classes and sections of people. One
can start the process with the castes, wherever they are found, apply the
criteria (evolved for determining backwardness) and find out whether it
satisfies the criteria. If it does - what emerges is a "backward class of
citizens" within the meaning of and for the purposes of Article 16(4).
Similar process can be adopted in the case of other occupational groups,
communities and classes, so as to cover the entire populace. The central idea
and overall objective should be to consider all available groups, sections and
classes in society. Since caste represents an existing, identifiable social
group/class encompassing an overwhelming majority of the country's population,
one can well begin with it and then go to other groups, sections and classes.
(c) It is not necessary for a class to be designated as a backward class that
it is situated similarly to the Scheduled Castes/Scheduled Tribes, (d) 'Creamy
layer' can be, and must be, excluded. (e) It is not correct to say that the
backward class contemplated by Article 16(4) is limited to the socially and
educationally backward classes referred to in Article 15(4) and Article 340. It
is much wider. The test or requirement of social and educational backwardness
cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably
fall within the expression "backward class of citizens." The accent
in Article 16(4) appears to be on social backwardness. Of course, social,
educational and economic backwardness are closely inter-twined in the Indian
context. The classes contemplated by Article 16(4) may be wider than those
contemplated by Article 15(4).
4(a). Whether the backward classes can be
identified only and exclusively with reference to economic criteria?
Held from discussion in Q3 a backward class
cannot be determined only and exclusively with reference to economic criterion.
It may be a consideration or basis along with and in addition to social
backwardness, but it can never be the sole criterion. This is the view
uniformly taken by this Court and we respectfully agree with the same.
(b) Whether criteria like occupation-cum-income
without reference to caste altogether, can be evolved for identifying the
backward classes?
In Chitralekha, this Court held that such identification
is permissible. We see no reason to differ with the said view inasmuch as this
is but another method to find socially backward classes.
5. Whether the backward classes can be further
categorised into backward and more backward categories?
Held: No constitutional bar to such
categorization. Held point system in Mandal commission, 11 or more – some 12
some 20-22. – Goldsmiths compared with vaddes
6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a
binding rule or only a rule of caution or rule of prudence?
50% as
decided in Balaji is a binding rule.
(b) Whether the 50% rule, if any, is confined to
reservations made under Clause (4) of Article 16 or whether it takes in all
types of reservations that can be provided under Article 16?
Held this rule of 50% applies only to
reservations in favour of backward classes made under Article 16(4).
(c) Further while applying 50% rule, if any,
whether an year should be taken as a unit or whether the total strength of the
cadre should be looked to?
If the entire service/cadre is taken as a unit
and the backlog is sought to be made up, then the open competition channel has
to be choked altogether for a number of years until the number of members of
all backward classes reaches 500, i.e., till the quota meant for each of them
is filled up. This may take quite a number of years because the numbers of
vacancies arising each year are not many. Meanwhile, the members of open
competition category would become age barred and ineligible. Equality of
opportunity in their case would become a mere mirage. It must be remembered
that the equality of opportunity guaranteed by Clause (1) is to each individual
citizen of the country while Clause (4) contemplates special provision being
made in favour of socially disadvantaged classes. Both must be balanced against
each other. Neither should be allowed to eclipse the other. For the above
reason, we hold that for the purpose of applying the rule of 50% an year should
be taken as the unit and not the entire strength of the cadre, service or the
unit, as the case may be.
(d) Whether Devadasan was correctly decided?
Court overruled Devadasan(in which the carry
forward rule was struck down) case. Held
that a carry forward rule need not necessarily be in the same terms as the one
found in Devadasan. A given rule may say that the unfilled reserved vacancies
shall not be filled by unreserved category candidates but shall be carried
forward as such for a period of three years. In such a case, a contention may
be raised that reserved posts remain a separate category altogether. In our
opinion, however, the result of application of carry forward rule, in whatever
manner it is operated, should not result in breach of 50% rule.
7. Whether Article 16 permits reservations being
provided in the matter of promotions?
Held no reservation in promotion. Will affect
efficiency of administration.
8. Whether reservations are anti-meritian? To
what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the
matter of construing Article 16?
Did not think it necessary to explain in detail
on the correctness of the opposing point of view of the above. Court observed
that the mandate of Article 335 is to take the claims of members of SC/ST into
consideration, consistent with the maintenance of efficiency of administration.
It would be a misreading of Article to say that the mandate is maintenance of
efficiency of administration.) May be, efficiency, competence and merit are not
synonymous concepts; May be, it is wrong to treat merit as synonymous with
efficiency in administration and that merit is but a component of the
efficiency of an administrator. Even so, the relevance and significance of
merit at the stage of initial recruitment cannot be ignored. It cannot also be
ignored that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this much cost has to
be paid, if the constitutional promise of social justice is to be redeemed. We
also firmly believe that given an opportunity, members of these classes are
bound to overcome their initial disadvantages and would compete with - and may,
in some cases, excel members of open competitor candidates. It is undeniable
that nature has endowed merit upon members of backward classes as much as it
has endowed upon members of other classes and that what is required is an
opportunity to prove it. It may not, therefore, be said that reservations are
anti meritian.Be that as it may, we are of the opinion that in certain services
and in respect of certain posts, application of the rule of reservation may not
be advisable for the reason indicated hereinbefore. Some of them are: (1)
Defence Services including all technical posts therein but excluding civil
posts. (2) All technical posts in establishments engaged in Research and
Development including those connected with atomic energy and space and
establishments engaged in production of defence equipment; (3) Teaching posts
of Professors - and above, if any. (4) Posts in super-specialities in Medicine,
engineering and other scientific and technical subjects. (5) Posts of pilots
(and co-pilots) in Indian Airlines and Air India. The list given above is
merely illustrative and not exhaustive. It is for the Government of India to
consider and specify the service and posts to which the Rule of reservation
shall not apply but on that account the implementation of the impugned Office
Memorandum dated 13th August, 1990 cannot be stayed or withheld.
9. Whether the extent of judicial review is
restricted with regard to the identification of Backward Classes and the
percentage of reservations made for such classes to a demonstrably perverse
identification or a demonstrably unreasonable percentage?
Court observed that there is no particular or
special standard of judicial scrutiny in matters arising under Article 16(4) or
for that matter, under Article 15(4). The extent and scope of judicial scrutiny
depends upon the nature of the subject matter, the nature of the right
affected, the character of the legal and constitutional provisions applicable
and so on. The acts and orders of the State made under Article 16(4) do not
enjoy any particular kind of immunity. At the same time, we must say that court
would normally extend due deference to the judgment and discretion of the
Executive - a co-equal wing - in these matters. The political executive, drawn
as it is from the people and represent as it does the majority will of the
people, is presumed to know the conditions and the needs of the people and
hence its judgment in matters within its judgment and discretion will be
entitled to due weight. More than this, it is neither possible nor desirable to
say. It is not necessary to answer the question as framed.
10. Whether the distinction made in the
Memorandum between 'poorer sections' of the backward classes and others
permissible under Article 16?
Observed that the said classification is not and
cannot be termed as invalid either constitutionally speaking or in law.
11. Whether the reservation of 10% of the posts
in favour of 'other economically backward sections of the people who are not
covered by any of the existing schemes of the reservations' made by the Office
Memorandum dated 25.9.1991 permissible under Article 16?
Held that the above reservation solely on basis
of income/property held by a person is violative of Article 16(1) of the
constitution and not valid in law.
Summary
The 9 judges Constitution Bench of the Supreme
Court by 6-3 majority gave the following judgements:-
I. Backward class of citizen in Article 16(4)
can be identified on the basis of the caste system & not only on economic
basis.
II. Article 16(4) is not an exception of Article
16(1). It is an instance of the classification. Reservation can be made under
article 16(1).
III. Backward classes in Article 16(4) were not
similar to as socially & educationally backward in article 15(4).
IV. Creamy layer must be excluded from the
backward classes.
V. Article 16(4) permits classification of
backward classes into backward & more backward classes.
VI. A backward class of citizens cannot be
identified only & exclusively with reference to economic criteria.
VII. Reservation shall not exceed 50%. Rule laid
down in Balaji was a binding rule.
VIII. Reservation can be made by the ‘EXECUTIVE
ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complains
of over – inclusion / under – inclusion.
XI. Majority held that there is no need to
express any opinion on the correctness or adequacy of the exercise done by the
MANDAL COMMISSION.
XII. Disputes regarding new criteria can be
raised only in the Supreme Court.
16. Ashoka
Kumar Thakur v. Union of India (2008) 6 SCC 1
Facts
In April 2006, the government decided to reserve
nearly 27% of seats for students from the OBC segment in institutes of higher
learning in India. This would have reduced the seats for a general, unreserved
candidate to about 50% (after taking into account other reserved seats). The
Indian parliament passed a bill to bring out an amendment in the constitution
in this regard. Ashoka Thakur challenged the validity of the amendments.
The Supreme Court of India in response to the
PIL refused to stay the constitutional amendment but issued notice to the
government. The government which had faced strong anti reservation protests on
its turn stated that the reservation policy would not be implemented until a
bill (The Central Educational Institutions (Reservation in Admission) Bill,
2006) introduced in the parliament in August 2006 for this purpose becomes a
law. The bill was later approved by the parliament.[1]
The Supreme Court, as an interim measure, stayed
the operation of admission to medical and professional institutions for OBC's
under the 27% quota category for the year 2007-2008 and directed that all cases
(including this one) should be listed for the third week of August for final
hearing and disposal on the issue.[2] The Court held that the 1931 census could
not be a determinative factor for identifying OBCs for the purpose of providing
reservation. However, it clarified that the benefit of reservation for the
Scheduled Castes and Scheduled Tribes could not be withheld and the Centre can
go ahead with the identification process to determine the backward classes.
On 10 April 2008, the Supreme Court of India
upheld the Government's 27% OBC quotas in Government funded institutions. The
Court categorically reiterated its prior stand that "Creamy Layer"
should be excluded from the ambit of reservation policy and private
institutions are also not to be included in. The verdict produced mixed
reactions. Several criteria to identify creamy layer has been recommended,
which are as follows:[1]
Those with family income above Rs 250,000 a year
should be in creamy layer, and excluded from the reservation quota. Also,
children of doctors, engineers, chartered accountants, actors, consultants,
media professionals, writers, bureaucrats, defence officers of colonel and
equivalent rank or higher, high court and Supreme Court judges, all central and
state government Class A and B officials. The court has requested Parliament to
exclude MPs’ and MLAs’ children, too.
Judgment
1. The Constitution (Ninety-Third Amendment)
Act, 2005 does not violate the "basic structure" of the Constitution
so far as it relates to the state maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third Amendment) Act,
2005 would be constitutionally valid or not so far as "private
unaided" educational institutions are concerned, is left open to be
decided in an appropriate case.
2."Creamy layer" principle is one of
the parameters to identify backward classes. Therefore, principally, the
"Creamy layer" principle cannot be applied to STs and SCs, as SCs and
STs are separate classes by themselves.
3. Preferably there should be a review after ten
years to take note of the change of circumstances.
4. A mere graduation (not technical graduation)
or professional deemed to be educationally forward.
5. Principle of exclusion of Creamy layer
applicable to OBC's.
6. The Central Government shall examine as to
the desirability of fixing a cut off marks in respect of the candidates
belonging to the Other Backward Classes (OBCs)to balance reservation with other
societal interests and to maintain standards of excellence. This would ensure
quality and merit would not suffer. If any seats remain vacant after adopting
such norms they shall be filled up by candidates from general categories.
7. So far as determination of backward classes
is concerned, a Notification should be issued by the Union of India. This can
be done only after exclusion of the Creamy layer for which necessary data must
be obtained by the Central Government from the State Governments and Union
Territories. Such Notification is open to challenge on the ground of wrongful
exclusion or inclusion. Norms must be fixed keeping in view the peculiar
features in different States and Union Territories. There has to be proper
identification of Other Backward Classes (OBCs.). For identifying backward classes,
the Commission set up pursuant to the directions of this Court in Indra Sawhney
1 has to work more effectively and not merely decide applications for inclusion
or exclusion of castes.
8. The Parliament should fix a deadline by which
time free and compulsory education will have reached every child. This must be
done within six months, as the right to free and compulsory education is
perhaps the most important of all the fundamental rights (Art.21 A). For
without education, it becomes extremely difficult to exercise other fundamental
rights.
9.If material is shown to the Central Government
that the Institution deserves to be included in the Schedule (institutes which
are excluded from reservations) of The Central Educational Institutions
(Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government
must take an appropriate decision on the basis of materials placed and on
examining the concerned issues as to whether Institution deserves to be
included in the Schedule of the said act as provided in Sec 4 of the said act.
10. Held that the determination of SEBCs is done
not solely based on caste and hence, the identification of SEBCs is not
violative of Article 15(1) of the Constitution.
17. Indra Sawhney v. Union of India, AIR 2000
SC 498 (Kerala
Creamy Layer Case) (Justice K.J.Thomas commission)
Kerala ignored creamy
layer part of Indra Sawhney 1 judgement – SC held Kerala Govt in contempt – 2
months notice- The Kerala Act 11 of 1995) to that effect (stating creamy layer
will not be excluded from quotas) – Petition filed in court – SC formed KJ
Thomas J. commission – gave report identifying creamy layer – SC directed State
Govt to implement Justice KJ Thomas report.
18. Ashoka
Kumar Thakur v. State of Bihar (1995) 5 SCC 403
In Ashok
Kumar Thakur v. State of Bihar, unreasonable conditions were prescribed to
identify the creamy layer. Unlike in Indra Sawhney case wherein it was stated
that children of any IAS or IPS officer would be denied the benefit of
reservation, in Ashok Kumar Thakur v. State of Bihar an additional condition
was laid down that the IAS or IPS officer should also be earning a minimum
salary of Rs. 10000 per month, which condition was quashed as discriminatory.
19. Gulshan
Prakash v. State of Haryana, 2009 (14) SCALE 290 :AIR 2010 SC 2888
Held that citizens belonging to backward
classes, including scheduled castes(SCs) and scheduled tribes(STs), could not
force the government to provide them reservation.
A three-judge bench comprising Chief Justice
K.G.Balakrishanan, Justice P.Sathasivam and Justice J.M. Panchal noted that the
government was the best judge to take a decision on reservation and it could
not be claimed as a matter of fundamental right.
Dismissing petition seeking a direction to the
Haryana government to provide reservation to SCs and STs in post graduate
medical courses, the bench pointed out that it was for the state government to
decide whether to provide reservation or not.
Every state can take its own decision with
regard to reservation depending on various factors, the bench observed:
Article 15(4) does not make any mandatory
provision for reservation and the power to make reservation under article 15(4)
is discretionary and writ can be issued to effect reservation, the bench
held.
The bench accepted the contention of the state
government that article 15(4) - which provide for reservation in educational
institutions-was merely an "enabling provision" which entitled the
the government to provide for reservation.
Though
the judgment pertained to reservation in educational institutions, Article
16(4), which provided for reservation in public employment, was also couched in
similar language.
The bench specifically recorded in its judgment
that sub clause (4) in both the articles 15 and 16 is only an enabling
provision for the state government to bring forward legislation or pass an
executive order for the benefit of socially and educationally backward classes
of citizens and for the scheduled castes and scheduled tribes
Thus, a policy decision to provide reservation ,
unless unreasonable, would be protected by articles 15(4) and 16(4) from being
assailed before courts but a petition could not be filed to force the
government to provide reservation as the provision did not provide for
mandatory reservation.
Holding that Article 15 (4) did not make a
mandatory provision for reservation, the bench pointed out that the principle
behind the provision was that preferential treatment can be given validly when
the the socially and educationally backward class need it
It further accepted the contention that the
state government was the competent authority to decide the reservation in
states.
In K. Duraisamy and Another vs. State of T.N.
and Others, a three-Judge Bench, while
dealing with the reservation at the Post-Graduate level and super-specialty
level, observed as follows:-
That the Government possesses the right and
authority to decide from what sources the admissions in educational institutions
or to particular disciplines and courses therein have to be made and that too
in what proportion, is well established and by now a proposition well settled,
too. It has been the consistent and
authoritatively settled view of this Court that at the super-specialty
level, in particular, and even at the postgraduate level, reservations of the
kind known as "protective discrimination" in favor of those
considered backward should be avoided as being not permissible. Reservation,
even if it be claimed to be so in this case, for and in favour of the
in-service candidates, cannot be equated or treated on par with communal
reservations envisaged under Articles 15(4) or 16(4) and extended the special
mechanics of their implementation to ensure such reservations to be the minimum
by not counting those selected in open competition on the basis of their own
merit as against the quota reserved on
communal considerations."
In AIIMS Student’s Union vs. AIIMS and Others,
while considering the similar issue, it was held that:-
When protective discrimination for promotion of
equalization is pleaded, the burden is on the party who seeks to justify the ex
facie deviation from equality. The basic rule is equality of opportunity for
every person in the country, which is a constitutional guarantee. A candidate
who gets more marks than another is entitled to preference for admission. Merit
must be the test when choosing the best, according to this rule of equal chance
for equal marks. This proposition has greater importance when we reach the higher levels and
education like postgraduate courses. Reservation, as an exception, may be
justified subject to discharging the burden of proving justification in favor
of the class which must be educationally
handicapped -- the reservation geared up to getting over the handicap. The rationale of reservation in the case of
medical students must be removal of regional or class inadequacy or like
disadvantage. Even there the quantum of reservation should not be excessive or
societal injurious. The higher the level of the specialty the lesser the role
of reservation."
Permissible reservation at the lowest or primary
rung is a step in the direction of assimilating the lesser fortunates in the
mainstream of society by bringing them to the level of others which they cannot
achieve unless protectively pushed. Once that is done the protection needs to
be withdrawn in the own interest of protectees
so that they develop strength and feel confident of stepping on higher
rungs on their own legs shedding the crutches. Pushing the protection of
reservation beyond the primary level betrays the bigwigs’ desire to keep the
crippled crippled forever. Any reservation, apart from being sustainable on the
constitutional anvil, must also be reasonable to be permissible. In assessing
the reasonability, one of the factors to be taken into consideration would be,
whether the character and quantum of reservation would stall or accelerate
achieving the ultimate goal of excellence enabling the nation constantly rising
to higher levels. In the era of globalization, where the nation as a whole has
to compete with other nations of the world so as to survive, excellence cannot
be given an unreasonable go-by and
certainly not compromised in its entirety"
In Ajit Singh (II) v. State of Punjab, the Court
held that:
The Article 16(4) of the Constitution confers
discretion and does not create any
constitutional duty and obligation. Language of Article 15(4) is identical,
that a mandamus can be issued either to provide for reservation or for
relaxation is not correct and runs counter to judgments of earlier Constitution
Benches and, therefore, these two
judgments cannot be held to be laying down the correct law. In these
circumstances, neither the respondent in the present case could have sought for
a direction nor could the High Court have granted the same.
In State of Punjab vs. Dayan and Medical College
and Hospital and Others, wherein
similar contention as projected before the court by the counsel for the
appellants was raised.
In the judgment in Preeti Srivastava case, it
was clarified by the Supreme Court that only paying attention to the question
of fixing lower minimum qualifying
marks for reserved category candidates. In the same decision, it
was stated that such question must be decided by the Medical Council of India,
since it affects the standard of Post-graduate medical education.
In Ajit Singh and Others (II) vs. State of
Punjab and Others, Constitution Bench has held that Article 16(4) is only an
enabling provision, which reads as under:"On the face of it, the above
language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling
provision and it has been so held in judgments rendered by Constitution Benches
and in other cases right from
1963."
In the case of Union of India Vs. R.
Rajeshwaran. As Article 16(4), Article 15(4) confers a discretion and does not
create any constitutional duty or obligation, therefore, no mandamus can be
issuted either to provide for reservation or for relaxation in admission in
Universities.
Thus the right to reservation is not a
fundamental right and it cannot be enforced against the state.
20. Avinash
Singh Bagri v. Registrar, IIT, Delhi (2009) 8 SCC 220
IIT Delhi SC/ST/OBC student termination case –
one more opportunity –
Considering the various aspects including the
fact that (a) appeal provision is available from third year and no such
facility for the first and second year; (b) duration of study is now extended
by spreading over up to eight years; (c) absence of slow paced course; (d)
failure to accommodate these petitioners in the summer course in spite of order
of this Court; (e) even candidates who secured lesser grade than the minimum
were allowed to go to next academic session by allowing their appeals
(authorities are not consistent in considering similarly placed candidates);
(f) out of nine students as on date three were not interested and six persons
alone want to continue their course, we are of the view that ends of justice
would be fully met by giving one more opportunity to them. Accordingly, we
direct the first respondent to consider their case afresh in the light of the
various aspects mentioned above and in view of the peculiar facts, re-apprise
their performance taking note of special features available/applicable to these
reserved categories and take a decision one way or the other within a period of
four weeks from the date of receipt of copy of this judgment. We make it clear
that the first respondent IIT-Delhi is free to pass appropriate orders by
considering all the aspects mentioned above including the policy of the
Government of India in providing reservation to bring them in the mainstream
along with others.
21. M.
Nagraj v. Union of India (2006) 8 SCC 212
Facts: Petitioners have invoked Article 32 of
the Constitution for a writ in the nature of certiorari to quash the
Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the
Constitution retrospectively from 17.6.1995 providing reservation in promotion
with consequential seniority as being unconstitutional and violative of the
basic structure.
The impugned constitutional amendments by which
Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do
not alter the structure of Article 16(4). They retain the controlling factors
or the compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335. These impugned
amendments are confined only to SCs and STs. They do not obliterate any of the
constitutional requirements, namely, ceiling-limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative exclusion), the
sub-classification between OBC on one hand and SCs and STs on the other hand as
held in Indra Sawhney 1992 Supp. (3) SCC 217 , the concept of post-based Roster
with in-built concept of replacement as held in R.K. Sabharwal (1995) 2 SCC
745.
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.
However, in this case, as stated, the main issue
concerns the "extent of reservation". In this regard the concerned
State will have to show in each case the existence of the compelling reasons,
namely, backwardness, inadequacy of representation and overall administrative
efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make
reservation for SC/ST in matter of promotions.
However if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that class in
public employment in addition to compliance of Article 335. It is made clear
that even if the State has compelling reasons, as stated above, the State will
have to see that its reservation provision does not lead to excessiveness so as
to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the
reservation indefinitely.
Subject to above, we uphold the constitutional
validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the
Constitution (Eighty-First Amendment) Act, 2000, the Constitution
(Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment)
Act, 2001..
(k) Abolition of Untouchability (Articles 17,
35) [deleted]
1. The Protection of Civil Rights Act, 1955
2. The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
(l) Abolition of Titles (Article 18) [deleted]
22. Balaji Raghavan v. Union of India, AIR 1996
SC 770 [deleted]
Topic 3 : Right to Freedom
(Articles 19 - 22)
(a) Right to Freedoms available only to citizens
of India; Foreign nationals and artificial persons like bodies corporate
(companies) are not citizens either under Part II of the Constitution of India
or under the Citizenship Act, 1955
1. Freedom of speech and expression;
2. Freedom to assemble peaceably and without
arms;
3. Freedom to form association or unions;
4. Freedom to move freely throughout the
territory of India;
5. Freedom to reside and settle in any part of
the territory of India;
6. Freedom to practise any profession, or to carry
on any occupation, trade or business.
The freedoms are not absolute but subject to
reasonable restrictions which can be imposed by law made by the state for the
purposes mentioned in clauses (2) to (6) of Article 19
The term ‘reasonable restriction’ includes total
prohibition
Article 19. Protection of certain rights
regarding freedom of speech, etc.
(1) All citizens shall have the right-
(a) To freedom of speech and expression;
(b) To assemble peaceably and without arms;
(c) To form associations or unions;
(d) To move freely throughout the territory of
India;
(e) To reside and settle in any part of the
territory of India; 1[and]
(f) 2* * * * *
(g) To practise any profession, or to carry on
any occupation, trade or business.
3[(2) Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of
4[the sovereignty and integrity of India,] the
security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.]
(3) Nothing in sub-clause (b) of the said clause
shall affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests of 4[the
sovereignty and integrity of India or] public order, reasonable restrictions on
the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause
shall affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests of 4[the
sovereignty and integrity of India or] public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in 5[sub-clauses (d) and (e)] of the
said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause
shall affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the
said sub-clause, and, in particular, 6[nothing in the said sub-clause shall
affect the operation of any existing law in so far as it relates to, or prevent
the State from making any law relating to, -
(i) The professional or technical qualifications
necessary for practising any profession or carrying on any occupation, trade or
business, or
(ii) The carrying on by the State, or by a
corporation owned or controlled by the State, of any trade, business, industry
or service, whether to the exclusion, complete or partial, of citizens or
otherwise].
1. Ins. by the Constitution (Forty-fourth
Amendment) Act, 1978, s. 2 (w.e.f. 20-6-1979).
2. Sub-clause (f) omitted by s. 2, Constitution
(Forty-fourth Amendment) Act, 1978 (w.e.f. 20-6-1979).
3. Subs. by the Constitution (First Amendment)
Act, 1951, s. 3, for cl. (2) (with retrospective effect
4. Ins. by the Constitution (Sixteenth
Amendment) Act, 1963, s. 2.
5. Subs. by the Constitution (44th Amendment)
Act, 1978, s. 2, for “sub-clauses (d), (e) and (f)” (w.e.f. 20-6-1979)
6. Subs. by the Constitution (First Amendment)
Act, 1951, s. 3, for certain words.
Article 20. Protection in respect of conviction
for offences.
(1) No person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the Act
charged as an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission
of the offence.
(2) No person shall be prosecuted and punished
for the same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself.
Article 21. Protection of life and personal
liberty.
No person shall be deprived of his life or personal
liberty except according to procedure established by law.
Article 21A. Right to education.
1[21A. Right to education.
The State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as
the State may, by law, determine.]
1. Ins. By the Constitution (Eighty-sixth
Amendment) Act, 2002.
Article 22. Protection against arrest and
detention in certain cases.
22. Protection against arrest and detention in
certain cases.
(1) No person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.
(2) Every person who is arrested and detained in
custody shall be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a
magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) To any person who for the time being is an
enemy alien; or
(b) To any person who is arrested or detained
under any law providing for preventive detention.
(4) No law providing for preventive detention
shall authorise the detention of a person for a longer period than three months
unless-
(a) An Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed as, Judges of a High Court
has reported before the expiration of the said period of three months that
there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall
authorise the detention of any person beyond the maximum period prescribed by
any law made by Parliament under sub-clause (b) of clause (7); or
(b) Such person is detained in accordance with
the provisions of any law made by Parliament under sub-clauses (a) and (b) of
clause (7).
(5) When any person is detained in pursuance of
an order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order.
(6) Nothing in clause (5) shall require the
authority making any such order as is referred to in that clause to disclose
facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe-
(a) The circumstances under which, and the class
or classes of cases in which, a person may be detained for a period longer than
three months under any law providing for preventive detention without obtaining
the opinion of an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4);
(b) The maximum period for which any person may
in any class or classes of cases be detained under any law providing for
preventive detention; and
(c) The procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause (4).
1. On the enforcement of s.
3 of the Constitution (Forty-fourth Amendment) Act, 1978, art. 22 shall stand
amended as directed in s. 3 of that Act. For the text of s. 3 of that Act, see
Appendix III.
The Right to Information Act, 2005
The Sports Broadcasting Signals (Mandatory
Sharing with Prasar Bharati) Act, 2007
23. Bennett
Coleman & Co. v. Union of India, AIR 1973 SC 106
(i) Constitution - freedom of speech and
expression - Imports and Exports (Control) Act, 1947, Sections 3 and 4-A of
Import Control Order, 1955, Newsprint Control Order, 1962, Section 3 of
Essential Commodities Act and Articles 13, 14, 19 and 358 of Constitution of
India - Constitutional validity of Import Policy for Newsprint for 1972-73
along with Newsprint Control Order, 1962 issued under Section 3 of Essential
Commodities Act challenged - above provisions barred taking out editions by
common ownership unit, rigid imposition of ten pages, bar on interchangeability
within common ownership unit and allowance of 20% increase to newspapers below
10 pages - Court opined that freedom of speech and expression is not only in
volume of circulation but also in volume of news and views - press has right to
free propagation and free circulation without any previous restraint - law
imposing prohibitive burdens on press compelling it to seek government aid was
violative of Article 19 (1) (a) - such provisions fall outside reasonable
restrictions of Article 19 (2).
(ii) Proclamation of emergency - Import Policy
of 1972-73 not protected from attack under Article 19 (1) even during
proclamation of emergency - executive action which was unconstitutional right
from start cannot be immune from challenge during emergency - proclamation of
emergency does not authorise executive action that affects Article 19 without
any legislative authority.
(iii)
Test of direct effect - test of 'pith and substance' and 'objects of
legislation' irrelevant to question of infringement of fundamental rights (FR)
- true test for infringement of FR is 'direct effect' of impugned State action
on particular FR - FR of citizens are not lost when they form a company - when
company's rights are affected shareholders' rights necessarily get affected.
Facts:
Complainant claimed that the Newsprint Order,
which fixed the maximum number of publishable pages, violated the provisions of
Article19 (1) (a) and 14 of the Constitution of India. Remember, these Articles
respectively provide citizens with freedom of speech and expression and right
to equality before law.
The government of India argued that the measure
was taken to give an opportunity to small newspapers to grow and to prevent the
monopoly of big newspaper companies. However, the court held that the News
Print Policy violated the provisions of Article 19, of the Constitution of
India and breached the plaintiff’s right of circulation and right of pages
growth.
Citations
In Romesh Thapar v. State of Madras, Patanjali
Shastri, CJ observed: “ Freedom of speech and of the press lay at the
foundation of all democratic organisations, for without free political
discussion no public education, so essential for the proper functioning of the
process of popular government, is possible.
In Indian Express v.
Union of India, it has been held that the press plays a very significant role
in the democratic machinery. The courts have duty to uphold the freedom of
press and invalidate all laws and administrative actions that abridge that
freedom. Freedom of press has three essential elements. They are:1. freedom of
access to all sources of information, 2. freedom of publication, and 3. freedom
of circulation.
In Sakal Papers Ltd. v.
Union of India,[8] the Daily Newspapers (Price and Page) Order, 1960, which
fixed the number of pages and size which a newspaper could publish at a price
was held to be violative of freedom of press and not a reasonable restriction
under the Article 19(2).
In the case of Brij
Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship
previous to the publication of an English Weekly of Delhi, the Organiser was
questioned. The court struck down the Section 7 of the East Punjab Safety Act,
1949, which directed the editor and publisher of a newspaper “to submit for
scrutiny, in duplicate, before the publication, till the further orders , all
communal matters all the matters and news and views about Pakistan, including
photographs, and cartoons”, on the ground that it was a restriction on the
liberty of the press.
The Bank Nationalisation case (supra) has
established the view that the fundamental rights of shareholders as citizens
are not lost when they associate to from a company. When their fundamental
rights as shareholders are impaired by State action their rights as
shareholders are protected. The reason is that the shareholders' rights are
equally and necessarily affected if the rights of the company are affected. The
rights of shareholders with regard to Article 19(1)(a) are projected and
manifested by the newspapers owned and controlled by the shareholders through
the medium of the corporation. In the present case, the individual rights of
freedom of speech and expression of editors, Directors and shareholders are all
exercised through their newspapers through which they speak. The press reaches
the public through the Newspapers. The shareholders speak through their
editOrs. The fact that the companies are the petitioners does not prevent this
Court from giving relief to the shareholders, editors, printers who have asked
for protection of their fundamental rights by reason of the effect of the law
and of the action upon their rights. The locus standi of the shareholder
petitioners is beyond challenge after the ruling of this Court in the Bank
Nationalisation case
24. Secretary,
Ministry of I & B, State of W. B v. Cricket Association (1995) 2 SCC 161
In Secretary Ministry of Information and
Broadcasting Government of India and Others v. Cricket Association of Bengal
and Others (1995) 2 SCC 161 this Court considered the question of the right to
telecast a sports event. The Court referred to Article 10 of the European
Convention on Human Rights which inter alia states: “10.1 Everyone has the
right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.”
Thereafter, the Court summarised the law on the
freedom of speech and expression under Article 19(1)(a) as restricted by
Article 19(2) thus:- “The freedom of speech and expression includes the right
to acquire information and to disseminate it. Freedom of speech and expression
is necessary for self-fulfilment. It enables people to contribute to debate on
social and moral issues. It is the best way to find a truest model of anything,
since it is only through it that the widest possible range of ideas can
circulate. It is the only vehicle of political discourse so essential to
democracy. Equally important is the role it plays in facilitating artistic and
scholarly endeavours of all sorts.”
The Court deals with the right of telecast and
(in paragraph 75) as follows:-
“In a team event such as cricket, football,
hockey etc., there is both individual and collective expression. It may be true
that what is protected by Article 19(1)(a) is an expression of thought and
feeling and not of the physical or intellectual prowess or skill. It is also
true that a person desiring to telecast sports events when he is not himself a participant
in the game does not seek to exercise his right of self-expression. However, the
right to freedom of speech and expression also includes the right to educate,
to inform and to entertain and also the right to be educated, informed and
entertained. The
former is the right of the telecaster and the
latter that of the viewers. The right to telecast sporting event will therefore
also include the right to educate and inform the present and the prospective
sportsmen interested in the particular game and also to inform and entertain
the lovers of the game. Hence, when a telecaster desires to telecast a sporting
event, it is incorrect to say that the free-speech element is absent from his
right."
The Court thereafter (in paragraph 82) held:-
"True democracy cannot exist unless all
citizens have a right to participate in the affairs of the polity of the
country. The right to participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the issues, in respect of
which they are called upon to express their views. One-sided information,
disinformation, misinformation and non-information all equally create an
uniformed citizenry which makes democracy a farce when the medium of
information is monopolised either by a partisan central authority or by private
individuals or oligarchic organisations. This is particularly so in a country
like ours where about 65 per cent of the population is illiterate and hardly 1%
of the population has an access to the print media which is not subject to precensorship.”
The Court also observed – "a successful
democracy posits an 'aware' citizenry".
If the right to telecast and right to view to
sport games and right to impart such information is considered to be part and
parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter
– a little man – to know about the antecedents of his candidate cannot be held
to be a fundamental right under Article 19(1)(a). In our view, democracy cannot
survive without free and fair elections, without free and fairly informed
voters. Votes cast by uninformed voters in favour of X or Y candidate would be
meaningless. As stated in the aforesaid passage, one-sided information,
disinformation, misinformation and non-information all equally create an uninformed
citizenry which makes democracy a farce. Therefore, casting of a vote by
misinformed and non-informed voter or a voter having one-sided information only
is bound to affect the democracy seriously. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold
opinions. Entertainment is implied in freedom of 'speech and expression' and
there is no reason to hold that freedom of speech and expression would not cover
right to get material information with regard to a candidate who is contesting
election for a post which is of utmost importance in the democracy.
Decision:
The petitioners (CAB and BCCI) therefore have a
right to organise cricket matches in India, whether with or without the
participation of foreign teams. But what they are now seeking is a license to
telecast their matches through an agency of their choice - a foreign agency in
both the cases - and through
telecasting equipment brought in by such foreign agency from outside the
country. In the case of Hero Cup
Matches organised by CAB, they wanted
uplinking facility to INTELSAT through the government agency VSNL also. In the case of later international matches
organised by BCCI they did not ask for this facility for the reason that their
foreign agent has arranged direct uplinking with the Russian satellite Gorizon. In both cases, they wanted the permission to import the telecasting equipment along with the personnel
to operate it by moving it to places all over the country wherever the matches were to be played. They claimed this
license, or permission, as it may be called, as a matter of right said to be flowing from Article 19(1)(a) of the
Constitution. They say that the authorities are bound to grant such license/
permission, without any conditions, all that they are entitled to do, it is
submitted, is to collect technical fees wherever their services are availed,
like the services of VSNL in the case
of Hero Cup Matches. This plea is in principle no different from the right to
establish and operate private
telecasting stations. In principle, there is no difference between a permanent
TV station and a temporary one; similarly there is no distinction in principle
between a stationary TV facility and a mobile one; so also is there no distinction
between a regular TV facility and a TV facility for a given event or series of events. If the right claimed by the
petitioners (CAB and BCCI) is held to be constitutionally
sanctioned one, then each and every citizen of this country must also be entitled to claim similar
right in respect of his event or events, as the case may be. I am of the opinion that no such right flows
from Article 19(1)(a).
(b)Airwaves constitute public property and must
be utilised for advancing public
good. No individual has a right to utilise them at his choice and pleasure and
for purposes of his choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include
the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose
of broadcasting only when
allowed to do so by a statute and in accordance with
such statute. Airwaves being public
property, it is the duty
of the State to see that airwaves are so utilised as to advance the free speech
right of the citizens which is
served by ensuring plurality and diversity
of views, opinions and ideas. This is imperative in every democracy where
freedom of speech is assured. The free speech right guaranteed to every citizen of this country does
not encompass the right to use these airwaves at his choosing. Conceding such a
right would be detrimental to the free speech rights of the body of citizens inasmuch as only the
privileged few powerful economic, commercial and political interests - would
come to dominate the media. By manipulating the news, views and information, by indulging
in misinformation and
disinformation, to suit their commercial or other interests, they would be
harming and not serving - the principle of plurality and diversity of views,
news, ideas and opinions. This has been the experience of Italy where a limited
right, i.e., at the local level but not at the national level was recognised. It is also not
possible to imply or infer a right from the guarantee of free speech which only
a few can enjoy.
(c)Broadcasting media is inherently different
from Press or other means of communication/information. The analogy of press is misleading and
inappropriate. This is also the view
expressed by several Constitutional Courts including that of the United States
of America.
(d) I must clarify what I say; it is that the
right claimed by the petitioners (CAB and BCCI) - which in effect is no
different in principle from a right to establish and operate a private TV
station - does not flow from Article 19(1)(a); that such a right is not
Implicit in it. The question whether such right should be given to the citizens
of this country is a matter of policy for the Parliament.
Having regard to the revolution in information technology and the developments
all around, Parliament may, or may not, decide to confer such right. If it
wishes to confer such a right, it can only be by way of an Act made by
Parliament. The Act made should be consistent with the right of free speech of
the citizens and must have to contain strict programme and other controls as
has been provided for example, in the Broadcasting Act, 1991 in the United
Kingdom. This is the implicit command of Article 19(1)(a) and is essential to
preserve and promote plurality and diversity of views, news, opinions and
ideas.
(e) There is an inseparable inter-connection
between freedom of speech and the
stability of the society, i.e., stability of a nation-State. They contribute to
each other. Ours is a nascent republic. We are yet to achieve the goal of a
stable society. This country cannot also
afford to read into Article 19(1)(a) an unrestricted right to licensing (right
of broadcasting) as claimed by the petitioners herein.
(f) In the case before us, both the petitioners
have sold their right to telecast the matches to a foreign agency. They have
parted with the right. The right to telecast the matches, including the right
to import, install and operate the requisite equipment is thus really sought by
the foreign agencies and not by the petitioners. Hence, the question of
violation of their right under Article 19(1)(a) resulting from refusal of
license/permission to such foreign agencies does not arise.
2. The Government monopoly of broadcasting media
in this country is the result of historical and other factors. This is true of
every other country, to start with. That India was not a free country till 1947
and its citizens did not have constitutionally guaranteed fundamental freedoms till
1950 coupled with the fact that our Constitution is just about forty five years into operation explains the Government monopoly. As pointed
out in the body of the judgment, broadcasting media was a monopoly of the
Government, to start with, in every country except the United States where a conscious decision was taken at
the very beginning not to have State monopoly over
the medium. Until recently, the broadcasting media has been in the hands of
public/statutory corporations in most of the West European countries. Private
broadcasting is comparatively a
recent phenomenon. The experience in Italy of allowing private broadcasting at local level (while prohibiting it at national level) has left much to be desired. It has given rise to
powerful media empires which development is certainly not conducive to free speech
right of the citizens.
3 (a). It
has been held by this Court - and rightly - that
broadcasting media is affected by the free speech right of the citizens
guaranteed by Article 19(1)(a). This is also
the view expressed by all the Constitutional Courts whose opinions have been
referred to in the body of the judgment. Once this is so, monopoly of this
medium (broadcasting media),
whether by Government or by an individual, body or Organisation is
unacceptable. Clause (2) of Article 19 does not permit a monopoly in the matter
of freedom of speech and expression as is
permitted by clause (6) of
Article 19 vis-à-vis the right guaranteed by Article 19(1)(g). (b) The right of
free speech and expression includes
the right to receive and impart information. For ensuring the free speech right of the citizens
of this country, it is necessary that the citizens have the benefit of
plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware'
citizenry. Diversity of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at
informed judgment on all issues
touching them. This cannot be provided
by a medium controlled by a monopoly - whether the monopoly is of the State or any other
individual, group or Organisation. As a matter of fact, private broadcasting
stations may perhaps be more prejudicial to free speech right of the citizens than the government controlled media,
as explained in the body of the judgment. The
broadcasting media should be under
the control of the public as distinct from Government. This is the command
implicit in Article 19(1)(a). It should be operated by a public statutory
corporation or corporations, as the case may be, whose constitution and
composition must be such as to
ensure its/their impartiality in political, economic and social matters and on
all other public issues. It/they
must be required by law to present news, views
and opinions in a balanced way ensuring pluralism and diversity of opinions and
views. It/they must provide equal
access to all the citizens and groups to avail of the medium.
4. The Indian Telegraph Act, 1885 is totally
inadequate to govern an
important medium like the radio and
television, i.e., broadcasting media. The Act was intended for an altogether
different purpose when it was enacted. This is the result of the law in this
country not keeping pace with the
technological advances in the field of information and communications.
While all the leading democratic countries have enacted laws specifically
governing the broadcasting media, the law in this country has stood
still, rooted in the Telegraph Act
of 1885. Except Section 4(1) and
the definition of telegraph, no other provision of the Act is shown to have any
relevance to broadcasting media. It is, therefore, imperative that the
parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the
corporations, as the case.may be. This is necessary to safeguard the interests
of public and the interests of law
as also to avoid uncertainty, confusion and consequent litigation.
5. The CAB did not ever apply for a license under the first proviso to Section 4 of the
Telegraph Act nor did its agents ever make such an application.
The permissions, clearances
or exemption obtained by it from the several departments (mentioned in
judgment) are no substitute for a license under Section 4(1) proviso. In the
absence of such a license, the CAB had
no right in law to have its matches telecast by an agency of its choice. The legality or validity of the orders
passed by Sri N.Vithal, Secretary to the Government of India,
Telecommunications Department need not be
gone into since it has become,
academic. In the facts and
circumstances of the case, the charge of malafides or of arbitrary and authoritarian conduct attributed to Doordarshan and
Ministry of Information and Broadcasting is not acceptable. No opinion need be expressed on the allegations filed by BCCI in these matters. Its intervention was confined to legal questions only.
6. Now the question arises, what is the position
till the Central Government or the
Parliament takes steps as contem- plated in
Para (4) of the summary, i.e., if any sporting event or other event is to be
telecast from the Indian soil? The obvious answer flowing from the judgment
[and Paras (1) and (4) of this summary
is that the organiser of such event has to approach the, nodal Ministry as
specified in the de- cision of the Meeting of the Committee of
Secretaries held on November 12,
1993. I have no reason to doubt that such a request would be considered by the nodal Ministry and the AIR
and Doordarshan on its merits, keeping in view
the public interest. In case of any
difference of opinion or
dispute regarding the monetary terms on which such telecast is to be made, matter can always be referred to an Arbitrator or a panel of Arbitrators. In case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast not feasible,
then they may consider the grant of permission
to the organisers to engage an agency of their own for the purpose. Of course,
it would be equally open to the nodal Ministry (Government of India) to permit
such foreign agency in addition to AIR/ Doordarshan, if they are of the opinion
that such a course is called for in
the circumstances.
25. People’s
Union for Civil Liberties (PUCL) v. Union of India (2003) 4 SCC 399
Judgement delivered by P. Venkatarama Reddi, J.
The width and amplitude of the right to
information about the candidates contesting elections to the Parliament or
State Legislature in the context of the citizen's right to vote broadly falls
for consideration in these writ petitions under Article 32 of the Constitution.
While I respectfully agree with the conclusion that Section 33(B) of the
Representation of the People Act, 1951 does not pass the test of
constitutionality, I have come across a limited area of disagreement on certain
aspects, especially pertaining to the extent of disclosures that could be
insisted upon by the Court in the light of legislation on the subject.
Moreover, the importance and intricacies of the subject-matter and the virgin
ground trodden by this Court in Union of India Vs. Association for Democratic
Reforms [(2002) 5 SCC 294] to bring the right to information of the voter
within the sweep of Article 19(1)(a) has impelled me to elucidate and clarify
certain crucial aspects.
1. Securing
information on the basic details concerning the candidates contesting for
elections to the Parliament or State Legislature promotes freedom of expression
and therefore the right to information forms an integral part of Article
19(1)(a). This right to information is, however, qualitatively different from
the right to get information about public affairs or the right to receive
information through the Press and electronic media, though, to a certain
extent, there may be overlapping.
2. The
right to vote at the elections to the House of people or Legislative Assembly
is a constitutional right but not merely a statutory right; freedom of voting
as distinct from right to vote is a facet of the fundamental right enshrined in
Article 19(1)(a). The casting of vote in favour of one or the other candidate
marks the accomplishment of freedom of expression of the voter.
3. The directives given by this Court in Union
of India Vs. Association for Democratic Reforms [(2002) 5 SCC 294] were
intended to operate only till the law was made by the Legislature and in that
sense 'pro tempore' in nature. Once legislation is made, the Court has to make
an independent assessment in order to evaluate whether the items of information
statutorily ordained are reasonably adequate to secure the right of information
available to the voter/citizen. In embarking on this exercise, the points of
disclosure indicated by this Court, even if they be tentative or ad hoc in
nature, should be given due weight and substantial departure therefrom cannot
be countenanced.
4. The Court has to take a holistic view and
adopt a balanced approach in examining the legislation providing for right to
information and laying down the parameters of that right.
5. Section 33B inserted by the Representation of
People (3rd Amendment) Act, 2002 does not pass the test of constitutionality
firstly for the reason that it imposes blanket ban on dissemination of
information other than that spelt out in the enactment irrespective of the need
of the hour and the future exigencies and expedients and secondly for the
reason that the ban
operates despite the fact that the disclosure of information now provided for
is deficient and inadequate.
6. The right to information provided for by the
Parliament under Section 33A in regard to the pending criminal cases and past
involvement in such cases is reasonably adequate to safeguard the right to
information vested in the voter/citizen. However, there is no good reason for
excluding the pending cases in which cognizance has been taken by Court from
the ambit of disclosure.
7. The provision made in Section 75A regarding
declaration of assets and liabilities of the elected candidates to the Speaker
or the Chairman of the House has failed to effectuate the right to information
and the freedom of expression of the voters/citizens. Having accepted the need
to insist on disclosure of assets and liabilities of the elected candidate
together with those of spouse or dependent children, the Parliament ought to
have made a provision for furnishing this information at the time of filing the
nomination. Failure to do so has resulted in the violation of guarantee under
Article 19(1)(a).
8. The failure to provide for disclosure of
educational qualification does not, in practical terms, infringe the freedom of
expression.
9. The Election Commission has to issue revised
instructions to ensure implementation of Section 33A subject to what is laid
down in this judgment regarding the cases in which cognizance has been taken.
The Election Commission's orders related to disclosure of assets and
liabilities will still hold good and continue to be operative. However, direction
No.4 of para 14 insofar as verification of assets and liabilities by means of
summary enquiry and rejection of nomination paper on the ground of furnishing
wrong information or suppressing material information should not be enforced.
Accordingly, the writ petitions stand disposed
of without costs.
26. Bharat
Kumar K. Paticha v. State of Kerala,AIR 1997 Ker. 291 (FB)
"No political party or organization can
claim that it is entitled to paralyse the industry and commerce in the entire
State or nation and is entitled to prevent the citizens not in sympathy with
its viewpoints, from exercising their fundamental rights or from performing
their duties for their own benefit or for the benefit of the State or the
nation. Such a claim would be unreasonable and could not be accepted as a
legitimate exercise of a fundamental right by a political party or those
comprising it."
(b) (No legal/statutory right to go on strike –
(c) No Moral or equitable justification to go on strike.
Held - Calling for a bundh by any association,
organisation or political party and the enforcing of that call by it is illegal
and unconstitutional.
27. Communist
Party of India (M) v. Bharat Kumar (1998) 1 SCC 201
We are satisfied
that the distinction drawn by the High
Court between a "Bandh" and a call for general strike or
"Hartal" is well made out with reference to the effect of a
"Bandh" on the fundamental rights of other citizens. There cannot be
any doubt that the fundamental rights of the people as a whole cannot be
subservient to the claim of fundamental right of a n individual or only a section of the people. it is on the
basis of this distinction that
the High Court has rightly concluded that there cannot be any right to call or
enforce a "Bandh" which interferes with the exercise of the fundamental freedoms of other citizens, in
addition to causing national loss in may ways
28. AIADMK v. Chief Secretary, Government of
Tamil Nadu (2007) 1 SCALE 607 (reference only)
29. Chindamanrao v. State of M.P., AIR 1951 SC
118 (reference only)
30. Narendra Kumar v. Union of India, AIR 1960
SC 430 (reference only)
31. State of Gujarat v. Mirzapur Moti Qureshi
Kasab Jamat, AIR 2006 SC 212 (Cow slaughter) (reference only)
(b) Protection in respect of conviction for
offences (Article 20)
[Source: http://www.legalserviceindia.com/article/l293-Ex-Post-Facto-Laws-and-Indian-Legal-Scenario.html ]
(i) Ex-post Facto Law - An ex post facto law
(from the Latin for “from something done afterward”) or retroactive law is a
law that retroactively changes the legal consequences of acts committed or the
legal status of facts and relationships that existed prior to the enactment of
the law. Article 20(1) provides protection against retroactive law - Art.
20(1) has two parts. Under the first part, no person is to be convicted of an
offence except for violating ‘a law in force’ at the time of the commission of
the of the act charged as an offence. A person is to be convicted for violating
a law in force when the act charged is committed. A law enacted later, making
an act done earlier (not an offence when done) as an offence, will not make the
person liable for being convicted under it.[3] The second part of Art. 20(1)
immunizes a person from a penalty greater than what he might have incurred at
the time of his committing the offence. Thus, a person cannot be made to suffer
more by an ex-post-facto law than what he would be subjected to at the time he
committed the offence.[4] What is prohibited under Art. 20(1) is only
conviction or sentence, but not trial, under an ex-post-facto law. The
objection does not apply to a change of procedure or of court. A trial under a
procedure different from what obtained at the time of the commission of the
offence or by a court different from that which had competence ate then time
cannot ipso facto be held unconstitutional. A person being accused of having
committed an offence has no fundamental right of being tried by a particular
court or procedure, except in so far as any constitutional objection by way of
discrimination or violation of any other fundamental right may be involved.[5]
In lily Thomas v. Union
of India[15] it was argued that the law declared by the Supreme Court in Sarla
Mudgal could not be given retrospective effect because of Art. 20(1); it ought
to be given only prospective operation so that the ruling could not be applied
to a person who had already solemnised the second marriage prior to the date of
the Sarla Mudgal judgment[16]. However, Supreme Court rejected the contention
arguing that it had not laid down any new law in Sarla Mudgal. What the court
did in that case was only the law which had always been existence. It is the
settled principle that the interpretation of a provision of law relates back to
the date of the law itself and cannot be prospective from the date of the
judgment because the Court does not legislate but only interprets existing
laws.
(ii) Doctrine of Double Jeopardy - A partial
protection against double jeopardy is a Fundamental Right guaranteed under
Article 20 (2) of the Constitution of India. This states that ""No
person shall be prosecuted and punished for the same offence more than
once".[16] This provision enshrines the concept of autrefois convict, that
no one convicted of an offence can be tried or punished a second time. However
it does not extend to autrefois acquit, and so if a person is acquitted of a
crime he can be retried. In India, protection against autrefois acquit is a
statuatory right, not a fundamental right. Such protection is provided by
provisions of the Code of Criminal Procedure rather than by the Constitution. [source: Wikipedia]
(iii) Right against Self Incrimination
[ Source: http://www.legalserviceindia.com/article/l466-Privilege-Against-Self----Incrimination.html ]
Article 20(3) reads that-
“No person accused of any offence shall be compelled
to be a witness against himself”
The privilege against self-incrimination is a
fundamental canon of common criminal law jurisprudence. The characteristics
features of this provisions are –
# That the accused is presumed to be innocent,
# That it is for the prosecution to establish
his guilt, and
# That the accused need not make any statement
against his will.
Ingredients Constituting The Provision
This provision contains following ingredients-
1. It is a right available to a person”accused
of an offence[6]”.
2. It is a protection against “compulsion to be
a witness”.
3. It is a protection against such “compulsion”
resulting in his giving evidence “against himself”.
Elaborating the ingredients
Origin-
The origins of right to silence may not be
exactly clear but the right goes back to the middle ages in England. During the
16th century, the English Courts of Star Chamber and High Commission developed
the practice of compelling suspects to take an oath known as the “ex-officio
oath” and, the accused had to answer questions, without even a formal charge,
put by the judge and the prosecutor. If a person refused to take oath, he could
be tortured. These Star Chambers and Commissions were later abolished. The
right to silence is based on the principle ‘nemo debet prodere ipsum’, the
privilege against self-incrimination.
Accused of an offence- The privilege under this
clause is only available to an accused i.e., a person against whom a formal
accusation relating to the commission of an offence has been leveled which in
the normal course may result in the prosecution. It is however not necessary ,
to avail the privilege, that the actual trial or enquiry should have commenced
before the court or tribunal. Thus a person against whom the FIR[7] has been
recorded by the police and investigation ordered by the Magistrate can claim
the benefit of the protection.
Even if his name is not mentioned in the FIR as
an accused, it will not take him out of the category.In America the right
against self incrimination is not only available to accused but alsoto thw
witness. But Not Under Indian Laws.
But in nandini satpathey Vs. P.L. dani[8]
It was subsequently held that, the right extends
to witness and accused alike, that the expression 'accused of any offence’[9],
must mean formally accused in “praesenti not in future”, that it applies at
every stage at which furnishing of information and collection of materials
takes place, that the privilege extends not only to the deployment of the
information obtained as evidence in a criminal prosecution, but to the
extraction of the information itself.
[8] AIR1978SC1025, 1978crilj968, (1978)2SCC424,
Decided On: 07.04.1978
Nandini Satpathy - Former Chief Minister Of
Orissa - Against Whom A Case Had Been Registered Under The Prevention Of
Corruption Act, Was Asked To Appear Before The Deputy Superintendent Of Police
[Vigilance] For Questioning. The Police Wanted To Interrogate Her By Giving Her
A String Of Questions In Writing. She Refused To Answer The Questionnaire, On
The Grounds That It Was A Violation Of Her Fundamental Right Against
Self-Incrimination.
Compulsion to be a witness-
The application of Narco-analysis test involves
the fundamental question pertaining to judicial matters and also to Human
Rights. The legal position of applying this technique as an investigative aid
raises genuine issues like encroachment of an individual’s rights, liberties
and freedom. In case of State Bombay v. Kathikalu AIR 1961 Cri LJ , Vol 2, 2007
it must be shown hat the accused was compelled to make statement likely to be
incriminative of himself. Compulsion means duress, which includes threatening,
beating or imprisonment of wife, parent or child of person. Thus where the
accused makes a confession without any inducement, threat or promise art 20(3)
does not apply.
compulsion” resulting in his giving evidence
“against himself”-
The right to silence has various facets. One is
that the burden is on the State or rather the prosecution to prove that the
accused is guilty. Another is that an accused is presumed to be innocent till
he is proved to be guilty. A third is the right of the accused against self
incrimination, namely, the right to be silent and that he cannot be compelled
to incriminate himself. There are also exceptions to the rule. An accused can
be compelled to submit to investigation by allowing his photographs taken,
voice recorded, his blood sample tested, his hair or other bodily material used
for DNA testing etc.
Some of the aspects relating to right to silence
Universal Declaration of Human Rights, 1948.
Art. 11.1
“Everyone charged with a penal offence has the
right to be presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his defence.”
2. The International Covenant on Civil and
Political Rights, 1966 to which India is a party states in Art. 14(3)(g)
“Not to be compelled to testify against himself
or to confess guilt”.
The European Convention for the Protection of
Human Rights and Fundamental Freedoms states in Art. 6(1) that every person
charged has a right to a ‘fair’ trial and Art. 6(2) thereof states:
“ Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”
(c) Protection
of life and personal liberty (Article 21) (discussed below in Maneka Gandhi & AK
Roy case)
The concept of ‘personal liberty’ first came up
for consideration of the Supreme Court in A.K. Gopalan’s case. In this case,
the Petitioner had been detained under Preventive Detention Act, 1950. The
petitioner challenged the validity of his detention on the ground that it was
violative of his Right to freedom of movement under Art. 19(1)(d), which is the
very essence of personal liberty guaranteed by Art. 21 of the Constitution. He
argued that the words ‘personal liberty’ include the freedom of movement also
and therefore the Preventive Detention Act, 1950 must also satisfy the
requirements of Art. 19(5). It was further argued that Art. 21 and Art. 19
should be read together as Art. 19 laid out the substantive rights while Art.
21 provided procedural rights. It was also argued that the words “procedure
established by law” actually meant “due process of law” from the American
Constitution which includes principles of natural justice and the impugned law
does not satisfy that requirement.
Rejecting both the contentions, Supreme Court,
by the majority, using the meaning given to the phrase ‘personal liberty’ by
Dicey, held that the phrase ‘personal liberty’ in Art. 21 meant nothing more
than the liberty of the physical body, that is, freedom from arrest and
detention without the authority of law.
According to majority, the term ‘liberty’ was wider in meaning and scope
than ‘personal liberty’. Hence, while ‘liberty’ could be said to include Art.
19 within its ambit, ‘personal liberty’ had the same meaning as given to the
expression “liberty of the person” under English law. Hence, the majority took
the view that Art. 19 and Art. 21 deal with different aspects of liberty. The Court further interpreted the term ‘law’
as ‘State made law’ and rejected the plea that the term ‘law’ in Art. 21 meant
jus naturale or principles of natural justice.
It is pertinent to mention here that in A.K.
Gopalan’s case, the attention of the Supreme Court was drawn to the legislative
history of Art. 21 which showed why the expression “due process of law” was
replaced by “procedure established by law”. However, it is unfortunate that the
legislative history of Art. 22, and particularly of clauses (1) and (2),
whereby the substance of “due process” was reintroduced, was not brought to the
attention of the Supreme Court.
But this restrictive
interpretation of the expression ‘personal liberty’ has not been followed by
the Supreme Court in its later decisions. Like for example, in Kharak Singh’s
case, it was held that “personal liberty” was not only limited to bodily
restraint but was used as compendious term including within itself all the
varieties of rights which go to make up the personal liberty of man other than those dealt within Art. 19(1).
POST-MANEKA GANDHI: NEW
DIMENSION
In Maneka Gandhi’s case,
the meaning and content of the words ‘personal liberty’ again came up for the
consideration of the Supreme Court. In this case, the petitioner’s passport had
been impounded by the Central Government u/s 10(3)(c) of the Passport Act,
1967. Here, the Supreme Court not only overruled A.K. Gopalan’s case but also
widened the scope of words ‘personal liberty’ considerably. Bhagwati, J.
observed:
“The expression
‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety
of rights which go to constitute the personal liberty of man and some of them
have raised to the status of distinct fundamental rights and given additional
protection under Article 19.”
With respect to the
relationship between Art. 19 and Art. 21, the Court held that Art. 21 is
controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The
Court observed:
“The law must therefore
now be settled that Article 21 does not exclude Article 19 and that even if
there is a law prescribing a procedure for depriving a person of personal
liberty, and there is consequently no infringement of the fundamental right
conferred by Article 21 such a law in so far as it abridges or takes away any
fundamental right under Article 19 would have to meet the challenges of that
Article.”
Thus a law “depriving a
person of ‘personal liberty’ has not only to stand the test” of Article 21 but
it must stand the test of Art. 19 and
Art. 14 of the Constitution.
33. A
K Roy v. Union of India, AIR 1982 SC 710
[Source: http://letstalkaboutthelaw.wordpress.com/2011/09/28/a-look-into-the-past-ak-roy-v-union-of-india/ ]
The Court considered six main issues:
1. The extent of the Executive’s Ordinance making
power under Article 123, and whether by exercise of such power, a valid
’procedure established by law’ existed so as to deprive people of their life
and personal liberty.
On the first issue, the Court clearly held
that an Ordinance under Article 123 did constitute ‘law’ under Article 13 and
given that it was required to pass the test of Part III by virtue of such
designation, the ordinance making power could not be circumscribed with any
additional limitations, especially in light of the express provision of Article
123(2) and Article 367(2). The Court observed that the ordinance making power
could extend to matters touching life and liberty and did not necessarily have
to operate on a ‘virgin land’. Further, the Court held that such power was
legislative in nature and that India not having a strict separation of powers
this did not violate the basic structure of the Constitution. The Court did not
go into the circumstances in which ordinance making power could be exercised
however, since the ordinance had by then been replaced by an Act, rendering the
point ‘academic’ in nature and hence irrelevant.
2. The validity of Preventive Detention laws in
general, and whether in the new paradigm of Constitutional Law such laws would
be constitutional.
On the second issue, the Court placed
primary reliance on the Constituent Assembly Debates to hold that the concept
of Preventive Detention was an integral part of the original Constitution.
Taking this further, they rejected the argument that Preventive Detention laws
could ipso facto be bad in law, as the concept itself had been considered and
granted express approval by the founding fathers of the Constitution, this
being expressed in the CAD, Article 22, Entry 9 List I and Entry 3 List III of
the Seventh Schedule of the Constitution. The Court held:
“…the Constitution, as originally conceived
and enacted, recognizes preventive detention as a permissible means of
abridging the liberties of the people, though subject to the limitations
imposed by Part III, we must reject the contention that preventive detention is
basically impermissible under the Indian Constitution.”
Most importantly, it was here that the
Court seems to go against the dictum of Maneka Gandhi where it was held
that: “…’procedure’ in Art. 21 means
fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece.” Contra
to that is the distinction that the Court draws in AK Roy, where it washes it
hands of a significant responsibility, stating at the outset that:
“The power to judge the fairness and
justness of procedure established by a law for the purposes of Article 21 is
one thing: that power can be spelt out from the language of that article.
Procedural safeguards are the handmaids of equal justice and since, the power
of the government is colossal as compared with the power of an individual, the
freedom of the individual can be safe only if he has a guarantee that he will
be treated fairly. The power to decide upon the justness of the law itself is
quite another thing: that power springs from a ‘due process’ provision.”
3.Whether the Court could compel by writ of mandamus
the notification of a Constitutional Amendment, in particular the 44th
Amendment that modified Article 22.
held firstly, that there was no abdication
of the constituent power conferred on Parliament under Article 368 merely by
virtue of the power of notification being delegated, given that constituent
power is plenary within the basic structure limitation and secondly, that the
Executive, especially in our form of Government was responsible to Parliament
and if the Parliament felt betrayed, it could act appropriately to amend the
Act or censure the Executive:
“The executive is responsible to the
Parliament and if the Parliament considers that the executive has betrayed its
trust by not bringing any provision of the Amendment into force, it can censure
the executive. It would be quite anomalous that the inaction of the executive
should have the approval of the Parliament and yet we should show our
disapproval of it by issuing a mandamus.
J Chandrachud :- If only the Parliament
were to lay down an objective standard to guide and control the discretion of
the Central Government in the matter of bringing the various provisions of the
Act into force, it would have been possible to compel the Central Government by
an appropriate writ to discharge the function assigned to it.”
4. The vagueness of the National Security Act, 1980 in
so far as it allowed for detention on grounds such as ‘national security’ and
‘security of the state’.
On the fourth issue, the Court simply
states that vagueness of a statute that deals with a matter inherently so
indeterminate as national security, cannot possibly be a ground for striking it
down.However, it promises to evaluate detention orders made for matters
irrelevant or not passing the test of ‘security of state’, given the wide
amplitude of the language in the Explanation to Section 3 of the Act, dealing
with detention in cases of manipulation of (essential) supplies and services.
5. The unfairness/unreasonableness of the procedure
before an Advisory Board, in particular, the denial of the rights of legal
representation, cross-examination and leading of evidence.
6. The unreasonable conditions of detention.
On the 5th & 6th issue the
court held that there existed no right to cross-examine witnesses, given the
secrecy of witnesses in such cases, the ‘different’ nature of proceedings
before Advisory Boards as opposed to regular trial courts and the ‘flexible’
nature of the principles of natural
justice. Secondly, it proceeded to disallow legal representation on a bare
reading of Article 22, but allowed consultation with a ‘friend’ and access to a
lawyer in cases where the detaining authority was accessing legal counsel.
Lastly, it allowed detenues to lead evidence, but with the caveat that the
Advisory Board would not summon any witnesses and the detainee was to ‘keep
them present at the appropriate time’.
At the end of the decision, the Court cited
the case of Sunil Batra (AIR 1980 SC 1579) and ordered that detainees under
Preventive Detention could not be kept with convicted prisoners, had to be
granted access to books and letters (Para 108: ‘Books are the best friends of
man whether inside or outside of jail’), wear their own clothes and meet their
family once a week. Aristotle himself would be proud of the craft seen in the
adjudicatory process of this decision, where the Court rejects all the
important and emphatic claims of the petitioners and grants the lesser,
ancillary claims with great fanfare, being quick to caveat them with
unnecessary limitations.
Summary
Court held that National Security
Ordinance 1980(providing for preventive detention) was valid and not violative
of A14 – Ordinance is like Parliamentary law – However ordinance would be
subject to test of vagueness, arbitrariness, reasonableness and public interest
and that it was passed only when legislatures were not in session – observed
that judicial review is not completely excluded in regard to question relating
to the President’s satisfaction.
d) Right
to Education (Article 21A) [source : http://www.legalserviceindia.com/articles/edu_pes.htm ]
In case of Mohini Jain V State of Karnataka ,
the Supreme Court held that right to education is fundamental right under
Article 21 of the Constitution.
The right to education springs from right to
life. The right to life under Article 21 and the dignity of the individual
cannot fully be appreciated without the enjoyment of right to education. The
Court observed:
# Right to life is compendious expression for
all those rights which the Courts must enforce because they are basic to the
dignified enjoyment of life. It extends to the fully range of conduct which the
individual is free to pursue. .... The right to life under Article 21 and the
dignity of the individual cannot be assured unless it is accompanied by the
right to education. The State Government is under an obligation to provide
educational facilities at all levels to its citizens.
In case of Unni Krishan V State of Andhra
Pradesh the Supreme Court was asked to examine the decision of Mohini Jain's case.
In the present case the Apex Court partly overruled given in the Mohini Jain
case. The Court held that, the right to education is implicit in the right to
life and personal liberty guaranteed by Article 21 and must be interpreted in
the light of the Directive Principle of State Policy contained in Articles 41,
45 and 46.
The Apex Court, however, limited the State
obligation to provide educational facilities as follows.
(i) Every Citizen of this Country has a right to
free education until he completes the age of fourteen years;
(ii) Beyond that stage, his right to education
is subject to the limits of the economic capacity of the state.
Further the Supreme Court in M.C. Mehta V State
of Tamil Nadu the Supreme Court observed that, to develop the full potential of
the children they should be prohibited to do hazardous work and education
should be made available to them. In this regard the Court held that, the
government should formulate programme offering job oriented education so that
they may get education and the timings be so adjusted so that their employment
is should not be affected.Again in Bandhua Muti Morcha V Union of India ,
Justice K. Ramaswamy and Justice Sagir Ahmad, observed, illiteracy has many
adverse effects in a democracy governed by rule of law. Educated citizens could
meaningfully exercise his political rights, discharge social responsibilities
satisfactorily and develop sprit of tolerance and reform.
The Government of India by Constitutional (86th
Amendment Act) Act, 2002 had added a new Article 21A which provides that
"the state shall provide free and compulsory education to all children of
the age of 6 to 14 years as the state may, by law determine". And further
strengthened this Article 21A by adding clause (K) to Article 51-A
[Art 51-A (k) who is a parent or guardian to
provide opportunities for education to his child or, as the case may be, ward
between the age of six and fourteen years]
e) Protection against arrest and detention
(Article 22)
34.D.K.
Basu v. State of West Bengal (1997) 1 SCC 416
Court laid down certain guidelines to be
followed in all cases of arrest to prevent custodial violence
(i) Accurate, visible & clear identification
& name tags w/ designation. names of all personal must be recorded in
register
(ii) Memo of arrest. Signed by one witness
(member of family or respectable person of locality)
(iii) Arrested person - right to have one
frnd/relative intrstd in his welfare informed of arrest
(iv) Time,place of arrest & venue of custody
to be notified by Police whr next frnd or relative lives outside district/town
thrgh Leg Aid Org & the police st of
the area concerned within a period of 8 to 13 hrs frm arrest
(v) Person arrested must be made aware of this
right to hv smeone informed of his arrest or detention at time of
arrest/detention
(vi) Diary Entry made at place of detention
rgdng arrest of person which shal also disclose name of next frnd of person who
hs been informed of the arrest.
(vii) Arrestee shld whr he so requests shld be
examined at the time of his arrest & any major & minor injuries, if
prsnt in body must be recorded at tht time. Inspection memo to be signed both
by arrestee & the police officer effecting the arrest & its copy
provided to arrestee
(viii) Arrestee shld be subjected to medical
examination by a trained doctor every 48hrs during his detention in custody by
a doctor on the panel of approved doctor apptd by Director Health Services of
the State or UT concrnd. Such panel fr all Tehsils & Districts as well.
(ix) Copies of all docs incl the memo of arrest,
referred to above, shld be sent to the Illaqa Magistrate fr his record.
(x) Arrestee may be permitted to meet his lawyer
during interrogation, though nt throughout.
(xi) A PCR shld be provided at all district
& state headqrtrs whr all info rgdng arrest & place of custody of the
arrestee shall be communicated by the offr causing the arrest, within 12 hrs of
effecting the arrest & at the police control room it shld be displayed on a
conspicuous notice board
35. People’s Union for Civil Rights v. Union of
India, 2003 (10) SCALE 967
Topic 4 : Right against
Exploitation (Articles 23, 24)
Article 23. Prohibition of traffic in human
beings and forced labour.
(1) Traffic in human beings and begar and other
similar forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the
State from imposing compulsory service for public purposes, and in imposing
such service the State shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.
Article 24. Prohibition of employment of
children in factories, etc.
No child below the age of fourteen years shall
be employed to work in any factory or mine or engaged in any other hazardous
employment.
Article 24 prohibits the employment of children
in factories, mines, and other hazardous occupations (“No child below the age
of fourteen years shall be employed to work in any factory or mine or engaged
in any other hazardous employment.” Constitution of India, Article 24).
Together, Articles 23 and 24 are placed under the heading “Right against
Exploitation,” one of India’s constitutionally-proclaimed fundamental rights.
Article 39 requires the state to “direct its
policy toward securing” the rights of children vis-à-vis their health and their
opportunity to develop themselves.
Bonded Labour System (Abolition) Act, 1976
The Bonded Labour System (Abolition) Act
purports to abolish all debt agreements and obligations arising out of India’s
longstanding bonded labor system [Consequently, post-act social action
litigation on behalf of bonded laborers is brought under both the Bonded Labour
System (Abolition) Act and the Constitution of India. For a discussion of cases
see Reddy, Bonded Labour System in India, ch. 4]. It frees all bonded laborers,
cancels any outstanding debts against them, prohibits the creation of new
bondage agreements, and orders the economic rehabilitation of freed bonded
laborers by the state. It also criminalizes all post-act attempts to compel a
person to engage in bonded labor, with maximum penalties of three years in
prison and a 2,000 rupee fine [The Bonded Labour System (Abolition) Act, 1976,
Sec. 4, 5, 6, and 14]. According to Sec. 2(g) The Bonded Labour System
(Abolition) Act abolishes the “bonded labour system” which is defined as the
system of forced, or partly forced labour under which a debtor enters is meant
to, and does, cover all of the many permutations of the bonded labor system in
modern India.
In addition, there are numerous laws that have
so many loopholes that they are rendered ineffective.
Children (Pledging of Labour) Act, 1933
This act predates Independence but remains in
force. It is rarely used and rarely mentioned in discussions of bonded labor
and child labor, probably because the more recent laws carry penalties that,
while lenient themselves, are nonetheless stiffer than those of the Children
(Pledging of Labour) Act. The act calls for penalties to be levied against any
parent, middleman, or employer involved in making or executing a pledge of a
child’s labor.
Child Labour (Prohibition and Regulation) Act,
1986
The Child Labour (Prohibition and Regulation)
Act was enacted in 1986 and defines a child as “a person who has not completed
their fourteenth year of age” [Child Labour (Prohibition and Regulation) Act,
1986, Part I, Section 2(ii)]. It does not prohibit child labor per se, nor does
it set a minimum age for the employment of children. Instead, it regulates the
hours and conditions of work for child laborers, while prohibiting the
employment of children in twenty-five hazardous industries.
The twenty-five occupations and industries where
child labor is prohibited are: beedi-making; carpet-weaving; cement manufacture;
cloth printing, dyeing and weaving; manufacture of matches, explosives and
fireworks; mica-cutting and splitting; shellac manufacture; soap manufacture;
tanning; wool-cleaning; the building and construction industry; manufacture of
slate pencils; manufacture of agate products; manufacturing processes using
toxic metals and substances; “hazardous processes” as defined by the Factories
Act, Sec. 87; printing as defined by the Factories Act, Sec. 2; cashew and
cashewnut processing; soldering processes in electronic industries, railway
transportation; cinder picking, ashpit clearing or building operations in
railway premises; vending operations at railway stations; work on ports; sale
of firecracker and fireworks; and work in slaughter houses. Child Labour (Prohibition
and Regulation) Act, 1986, Part II (Prohibition of employment of children in
certain occupations and processes), Sec. 3, Schedules A and B; as amended by
Government Notification Nos. No.SO 404(E) (June 5, 1989) and No. SO. 263(E)
(March 29, 1994).
36. People’s
Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 [Asiad Workers’
Case]
In Asiad Projects Workers case, SC has held that
right under Art 17 is available against private individuals as well and it is
the duty of the state to ensure that this right is not violated.
Begar is an ancient caste-based obligation, a
“form of forced labour under which a person is compelled to work without
receiving any remuneration (People’s Union for Democratic Rights v. Union of
India [Asiad Workers' Case], AIR 1982 S.C. 1473, paragraph 1486)”. “Other
similar forms of forced labour” was interpreted expansively by the Supreme
Court in 1982, when it ruled in the seminal Asiad Workers’ Case that both
unpaid and paid labour were prohibited by Article 23, so long as the element of
force or compulsion was present in the worker’s ongoing services to the
employer. Examples of force include overt physical compulsion and compulsion
under threat of legal sanction (as for example in the case of an allegedly unpaid
debt), as well as more subtle forms of compulsion, including “compulsion
arising from hunger and poverty, want and destitution”
The Supreme Court went on, however, to provide a
helpful rule for determining exactly what situations constitute forced labor.
“[W]here a person provides labour or service to another for remuneration which
is less than minimum wage, the labour or service provided by him clearly falls
within the scope and ambit of the word `forced labour’… [People's Union for
Democratic Rights v. Union of India, (1982) 3 SCC 235, paragraphs 259-260]“.
All labor rewarded with less than the minimum wage, then, constitutes forced
labor and violates the Constitution of India.
In another landmark case, this one brought on
behalf of a group of bonded quarry workers in the early 1980s, the Supreme
Court ruled that “[i]t is the plainest requirement of Articles 21 and 23 of the
Constitution that bonded labourers must be identified and released and on
release, they must be suitably rehabilitated…. [A]ny failure of action on the
part of the State Government[s] in implementing the provisions of [the Bonded
Labour System (Abolition) Act] would be the clearest violation of Article 21
[and] Article 23 of the Constitution” [Neeraja Chaudhary v. State of Madhya Pradesh,
3 SCC 243, paragraph 255,[1984]].
Topic 5 : Right to Freedom
of Religion (Articles 25 – 28)
The Madhya Pradesh Dharma Swatantraya Adhiniyam,
1968; the Orissa Freedom of Religion Act, 1967; the T.N. Prohibition of
Forcible Conversion Act, 2002; the Gujarat Freedom of Religion Act, 2003
Article 25. Freedom of conscience and free
profession, practice and propagation of religion.
(1) Subject to public order, morality and health
and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and propagate
religion.
(2) Nothing in this article shall affect the
operation of any existing law or prevent the State from making any law-
(a) Regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious
practice;
(b) Providing for social welfare and reform or
the throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus.
Explanation I. The wearing and carrying of
kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause (2),
the reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.
Article 26. Freedom to manage religious affairs.
Subject to public order, morality and health,
every religious denomination or any section thereof shall have the right-
(a) To establish and maintain institutions for
religious and charitable purposes;
(b) To manage its own affairs in matters of
religion;
(c) To own and acquire movable and immovable
property; and
(d) To administer such property in accordance
with law.
Article 27. Freedom as to payment of taxes for
promotion of any particular religion.
No person shall be compelled to pay any taxes,
the proceeds of which are specifically appropriated in payment of expenses for
the promotion or maintenance of any particular religion or religious
denomination.
Article 28. Freedom as to attendance at
religious instruction or religious worship in certain educational institutions.
(1) No religious instruction shall be provided
in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an
educational institution, which is administered by the State but has been
established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.
(3) No person attending any educational
institution recognised by the State or receiving aid out of State funds shall
be required to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if
such person is a minor, his guardian has given his consent thereto.
37.Seshammal
v. State of Tamil Nadu (1972) 2 SCC 11 (Source: Indiankanoon.org)
The Tamil Nadu Hindu Religious and Charitable
Endowments Act (Tamil Nadu 12 of 1959) as amended by Amending Act of 1970, ss.
28 55, 56 and 116--Hereditary right of succession to office of Archaka abolished—If violative of
Arts. 25 and 26 of Constitution.
Section 55 of the Tamil Nadu Hindu Religious. and
Charitable En- dowments Act, 1959, gave the trustee of a temple the power to
appoint the officer
holders or servants of the temple and also
provided that where the office or service is
hereditary, the person next in the line of succession shall be entitled
to succeed. In only exceptional cases the trustee was entitled to depart from the principle of next-in-the line of
succesion, but even so, the trustee was under an obligation to appoint a fit
person to perform the service
after having due regard to the claims of the members of the family. Section II
6 (2) (xxiii) of the Act gave power to the Government to make rules providing
for the qualifications to be possessed by the officers and servants and their conditions of
service. The State Government framed the Madras Hindu Religious Institutions (Officers
and Servants) Service Rules, 1964.
Rule 12 provided that an Archaka, whether hereditary or nonhereditary whose
duty it is to perform Pujas, shall, before succeeding to the office or appointment to
the Office, obtain a certificate of fitness for performing the duties of his office
from the head of an institution imparting, instructions in Agamas or from the'
head of a math recognised by the 'Commissioner orfront such other person- as
may be designated by the Commissioner.
The Act was amended by the Amending Act of 1970.
The Amending Act did away with the hereditary right of succession to
the office of Archaka. The petitioners who were Archakas of saivite and
Vaishnavite temples and Mathadhipatis to whose Maths temples are attached firm
writ petitions in this Court
contending that the amendments violated Arts. 25 and 26 of the Constitution.
Dismissing the petition
HELD : (1) The protection of Arts, 25 and 26 of
the Constitution is not limited to matters of, doctrine or believe, they extend
also to' 'acts done in pursuance of
religion and therefore contain a guarantee for rituals and observances etc.
which are the integral parts of religion. What constitutes aft essential part
of a religion or religious practice has to be decided by the Courts with reference to the doctrine
of at particular teli including
practices which are regarded by the community as a part of its religion.
(2) With the establishment of temples and the,
institution of Archakas in the temples, treatises on rituals were compiled
known as Agamas . The rituals have a two fold aspect, to attract the lay
worshippers and to preserve the image of the Deity from pollution, defilement
or desecration. Pollution or desecration may take place in a variety of ways
and according to the Agamas, an image becomes defiled if there is any departure or violation of the rules relating
to worship. Further, in all the temples in which images are consecrated the
Agamas insisted that only the qualified Archaka shall step inside the sanctum
sanctorum after observing certain disciplines imposed by the Agamas. Hence the
Archaka of such a temple, besides being proficient in the rituals appropriate
to the worship of the particular Deity, must also belong to a particular denomination; because, an Archaka of a different denomination would
defile the image by his touch.
(3) The hereditary principle in the appointment
of an Archaka had been adopted and accepted from antiquity and had also been
fully recognised in the unamended s. 55. But the change effected by the
amendment to s. 55, namely, the,
abolition of the principle of next-in-the-line
of succession is however, not invalid, because, the usage is a secular and not
a religious usage.
(a) An archaka has never been regarded as a
spiritual head however accomplished and well-versed in the agamas and rituals
he may be. He is a servant of the temple subject to the discipline and control
of the trustee as recognised by the unamended s. '56 of the Act. That being his
position the act of his appointment by the trustee is essentially secular,
'though after appointment he performs some religious functions. That after his
appointment he performs worship is no ground for holding that his appointment
is either a religious Practice or a matter of religion. He owes his appointment
to a secular authority. Any lay founder of a temple may appoint him and the She
baits and Managers of temples .exercise an essentially secular function in
choosing and appointing the Archaka. The fact that in some temples the
hereditary principle was followed in making the appointment would not make the
successive appointments anything but secular.
(b) The power given to the trustee under the
amended section to appoint any body as an Archaka so long as he possessed a
fitness certificate under r. 12 was not an unqualified power, because the power
had to be read with S. 28 of the Act which controlled it. Section 28 directs
the trustee to administer the affairs of the temple, in accordance with the
terms of the trust or usage of the institution. Therefore, the appointment of
the Archaka' will have to be made from the specified denomination, sect or
group in accordance with the directions of the Agamas governing the temple. In
view of. the amended s. 55(2)., the choice of the trustee in .the matter of appointment
of an archaka is no longer limited by the Operation of next-in-line of
succession in temples where the usage was to appoint the Archaka on the
hereditary principle. To that extent the trustee is released from the
obligation imposed on him by s. 28 to administer the affairs in accordance with
that part of the usage of a temple which enjoined hereditary appointments. But
the legislation in this fact does not interfere with any religious practice.
(4) The other changes effected in the other
provisions of the Act are merely consequential, and therefore, the Amendment
Act as a whole must be regarded as valid.
(5) The rule-making power is conferred by s. 116
on the Government with a view to carry out the purposes of the Act which are
essentially secular. The Act nowhere gives the indication that one of its
purposes is to effect a change in the
rituals and ceremonies followed in the temples. Section 105 and 107, on the
contrary, emphasize that there shall not be any contravention of the rights
conferred on any religious denominations of any section
thereof, by Art. 26 of the Constitution. Rule 12 still holds the field and
there is no reason to think that the State Government would frame rules to
revolutionise temple worship by introducing methods of worship not current
in the several temples. If any such rule is framed by Government which purports
to interfere with the rituals and ceremonies of the temples, it will be liable
to be challenged by those who are interested in the temple worship.
38. N.
Adithayan v. Travancore Devaswom Board (2002) 8 SCC 106
Appointment of non-Brahmin as Santikaran
(Priest) in temples in Kerala- Challenge of-
Held, In the absence of any specific custom or
usage to the contrary, appointment of a properly trained and qualified
non-Brahmin Santikaran is not violative of the Constitutional
provisions-Travancore Cochin Hindu Religious Institution Act, 1950; Section 31.
Hindu Law:
Sources of Law-Custom or Usage-Claim of
rights-Requirements of- Held, any custom or usage could not be countenanced as
source of law to claim any right if it violates' human rights, dignity, social
equality, provisions in
the Constitution or any other law made by
Parliament-Constitution of India, 1950-Protection of Civil Rights Act, 1955.
The question which arose in this appeal was
whether the appointment of a non-Brahmin Malayala as `Santikaran' or `Poojari'
(Priest) of the Siva Temple at a village in Kerala State, is violative of the
Constitutional statutory rights of the appellant, a Malayala Brahmin.
It was contended for the appellant that only
Namboodri Brahmins could perform pooja/daily rituals at temples in Kerala and
such a custom can not be thrown over in view of Articles 25 and 26 of the
Constitution and Section 31 of the Travancore Cochin Hindu Religious
Institution Act, 1950; and that appointment of Santikaran was not a secular
aspect and it has been dealt with by the Devaswom Board against the wishes of
worshippers.
It was contended for the State that appointment
of only Malayala Brahmins as Santikarans in Temple would violate Articles 14,
15 and 16 of the Constitution of India; and that appointment of a fully
qualified and trained person irrespective of its caste/community would not
infringe Articles 25 and 26 of the Constitution.
On behalf of the respondents, it was contended
that the appellant failed to establish any usage, as claimed; and that the
rights and claims based upon Article 25 have to be viewed in proper and correct
perspective in the light of Articles 15, 16 and 17 of the Constitution and the
provisions contained in the Protection of Civil Rights Act.
1.1. It is now well settled that Article 25
secures to every person, subject of course to public order, health and morality
and other provisions of Part-Ill, including Article 17 freedom to entertain and
exhibit by outward acts as well as propagate and disseminate such religious
belief according to his judgment and conscience for the edification of others.
The right of the State to impose such restrictions as are desired or found necessary
on grounds of public order, health and morality is inbuilt in Articles 25 and
26 itself. Article 25(2)(b) ensures the right of the State to make a law
providing for social welfare and reform besides throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus and any such rights of the State or of the communities or classes of
society were also considered to need due regulation in the process of
harmonizing the various rights. The vision of the founding fathers of
Constitution to liberate the society from blind and ritualistic adherence to
mere traditional superstitious beliefs sans reason or rational basis has found
expression in the form of Article 17. The legal position that the protection
under Articles 25 and 26 extend a guarantee for rituals and observances,
ceremonies and modes of worship which are integral parts of religion and as to
what really constitutes an essential part of religious practice has to be
decided by the Courts with reference to the doctrine of a particular religion
or practices regarded as parts of religion, came to be equally firmly laid
down.
1.2. Only a qualified person well versed and
properly trained for the purpose alone can perform poojas in the Temple since
he has not only to enter into the sanctum sanctorum but also touch the idol
installed therein. What is required and expected of one to perform the rituals
and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular
deity and the method of worship ordained or fixed therefore.
1.3. If
traditionally or conventionally, in any Temple, all along a Brahmin alone was
conducting poojas or performing the job of Santhikaran, it may not be because a
person other than the Brahmin is prohibited from doing so because he is not a
Brahmin, but those others were not in a position and, as a matter of fact, were
prohibited from learning, reciting
or mastering Vedic literature, rites or
performance of rituals and wearing sacred thread by getting initiated into the
order and thereby acquire the right to perform homa and ritualistic forms of
worship in public or private Temples. Consequently, there is no justification
to insist that a Brahmin or Malayala Brahmin, alone can perform the rites and
rituals in the Temples, as part of the rights and freedom guaranteed under
Article 25 of the Constitution and that any deviation would tantamount to
violation of any such guarantee under the Constitution.
1.4. As long any one well versed and properly
trained and qualified to perform the pooja in a manner conducive and
appropriate to the worship of the particular deity, is appointed as Santhikaran
dehors his pedigree based on caste, no valid or legally justifiable grievance
can be made in a Court of Law. There has been no proper plea or sufficient
proof also in this case of any specific custom or usage specially created by
the Founder of the Temple or those who have the exclusive right to administer
the affairs- religious or secular of the Temple in question, leave alone the
legality, propriety and validity of the same in the changed legal position
brought about by the Constitution and the law enacted by Parliament. The Temple
also does not belong to any denominational category with any specialized form
of worship peculiar to such denomination or to its credit. It becomes even
unnecessary to pronounce upon the invalidity of any such practice being
violative of the Constitutional mandade contained in Articles 14 to 17 and 21
of the CoI.
2.1. In
the instant case, it is on record that an institution has been started to
impart training to students joining the institution in all relevant Vedic
texts, rites, religious observances and modes of worship by engaging reputed
scholars and Thanthris and the students, who ultimately pass through the tests,
are being initiated by performing the investiture
of sacred thread and gayatri. That apart, even
among such qualified persons, selections based upon merit are made by the
Committee, which includes among other scholars a reputed Thanthri also and the
quality of candidate as well as the eligibility to perform the rites, religious
observances and modes of worship are once again tested before appointment.
While that be the position to insist that the
person concerned should be a member of a particular caste born of particular
parents of his caste can neither be an insistence upon an essential religious
practice, rite, ritual, observance or mode of worship nor any proper or
sufficient basis for asserting such a claim has been made out either on facts
or in law.
2.2. None of the earlier decisions rendered
before Seshammal's case related to consideration of any rights based on caste
origin and even Seshammal's case dealt with only the facet of rights claimed on
the basis of hereditary succession. Any custom or usage irrespective of even
any proof of their existence in pre constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to violate human
rights, dignity, social equality and the specific mandate of the Constitution
and law made by Parliament. No usage which is found to be pernicious and
considered to
be in derogation of the law of the land or
opposed to public policy or social decency can be accepted or upheld by Courts
in the country.
39. Commissioner
of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770
In the first round of litigation question raised
before this Court was whether performance of Tandava dance in public is an
essential practice of Ananda Margi order or not. This court in Acharya
Jagdishwaranda Avadhuta & Others v. The Commissioner of Police, Calcutta
& Another, (1983) 4 SCC 522, (First Ananda Margi case), held that Tandava
dance in public is not an essential rite of Ananda Margi faith. Subsequent to
the first case, it appears that Ananda Murti Ji founder of that order prescribed to perform
Tandava dance in public as an essential religious practice in Carya Carya, a
book containing the relevant doctrines. Based on this, Ananda Margis sought
permission of the Commissioner of Police to perform Tandava dance in public.
The Commissioner accorded permission to take out Tandava dance without knife,
live snake, trident or skull. This was challenged by the Respondents herein
before this Court by filing Writ Petition
After taking into account of all the relevant
facts, including the above, this Court held:
Ananda Marga as a religious order is of recent
origin and Tandava dance as a part of religious rites of that order is still
more recent. It is doubtful as to whether in such circumstances Tandava dance
can be taken as an essential religious rite of the Ananda Margis. Even conceding
that is so, it is difficult to accept Mr. Tarkunde's argument that taking out
religious processions with Tandava dance is an essential religious rite of
Ananda MargisOn the basis of the literature of the Ananda Marga denomination it
has been contended that there is prescription of performance of Tandava dance
by every follower of Ananda Marga. Even conceding that Tandava dance has been
prescribed as a religious rite for every follower of the Ananda Marga it does
not follow as a necessary corollary that Tandava dance to be performed in the
public is a matter of religious rite”
By the above finding this Court was categorical
in it's judgment that Tandava dance in public is not an essential part of
religious rites of Ananda Margi faith. The conclusion arrived at by this Court
regarding the non essential nature of Tandava dance to Ananda Margi faith was
principally based on the fact that the order itself is of recent origin and the
practice of dance is still more recent. Court even went to the extent of assuming
that Tandava dance was prescribed as a rite and then arrived at the conclusion
that taking out Tandava dance in public is not essential to Ananda Margi faith.
After arriving at the above ratio, the Court further added that
"In fact, there is no justification in any
of the writings of Shri Ananda Murti that Tandava dance must be performed in
public. At least none could be shown to us by Mr. Tarkunde despite an enquiry
by us in that behalf."
This observation cannot be considered as a clue
to reopen the whole finding. By making that observation the Court was only
buttressing the finding that was already arrived at. The learned judges of the
High Court wrongly proceeded on the assumption that the finding of this Court
regarding the non-essential nature of Tandava dance to the Ananda Margi faith
is due to the non-availability of any literature or prescriptions by the
founder. The High Court is under the wrong impression that an essential part of
religion could be altered at any subsequent point of time.
The protection
guaranteed under Articles 25 and 26 of the Constitution is not confined to
matters of doctrine or belief but extends to acts done in pursuance of religion
and, therefore, contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion. What
constitutes an integral or essential part of religion has to be determined with
reference to its doctrines, practices, tenets, historical background etc. of
the given religion.
What is meant by 'an
essential part or practices of a religion' is now the matter for elucidation.
Essential part of a religion means the core beliefs upon which a religion is
founded. Essential practice means those practices that are fundamental to
follow a religious belief. It is upon the cornerstone of essential parts or
practices the superstructure of religion is built. Without which, a religion
will be no religion. Test to determine whether a part or practice is essential
to the religion is to find out whether
the nature of religion will be changed without that part or practice. If the
taking away of that part or practice could result in a fundamental change in
the character of that religion or in its belief, then such part could be
treated as an essential or integral part. There cannot be additions or
subtractions to such part, because it is the very essence of that religion and
alterations will change its fundamental character. It is such permanent
essential part is what is protected by the Constitution. No body can say that
essential part or practice of one's religion has changed from a particular date
or by an event. Such alterable parts or practices are definitely not the 'core'
of religion where the belief is based and religion is founded upon. It could
only be treated as mere embellishments to the non- essential part or practices.
40. Bijoe
Emmanuel v. State of Kerala (1986) 3 SCC 615
The appellants-three children belong to a sect
called Jehovah's Witnesses who worship only Jehovah-the Creator and none other.
They refused to sing the National Anthem: 'Jana Gana Mana' because, according to them, it is against the tenets of
their religious faith-not
the words or the thoughts of the
National Anthem-but the singing of it. They desisted from actual singing only because
of their aforesaid honest belief and conviction but they used to stand up in
respectful silence daily, during
the morning assembly when the National Anthem was sung. A Commission was
appointed to enquire and report, and it reported that the children were
"law abiding" and that they showed no disrespect to the National
Anthem. However, under the instructions of Deputy Inspector of Schools, the
Head Mistress expelled the appellants from school from July 26, 1985.
A representation by the father of the children
to the Education Authorities requesting that the children may be permitted to
attend the school pending orders from the Government having failed, the
appellants filed a Writ Petition in the High Court seeking an order restraining
the authorities from preventing them from attending the school. A single
Judge and then a Division Bench
rejected the prayer of the appellants. Allowing the appeal by Special Leave, to
this Court.
HELD: 1.1. The Fundamental Rights of the
appellants under Art. 19(1)(a) and 25(1) have been infringed and they are
entitled to be protected. The expulsion of the three children from the school
for the reason that because
of their conscientiously held religious faith, they do not join the singing of
the National Anthem in the morning assembly though they do stand respectfully
when the National Anthem is sung, is a violation of the fundamental right to
freedom of conscience and freely to profess, practice and propagate religion.
Therefore, the judgment of the High Court is set aside and the respondent
authorities are directed to
re- admit the children into the school, to permit them to pursue their studies without hindrance and to
facilitate the pursuit of their
studies by giving them the
necessary facilities.
1.2 There is no provision of law which obliges
anyone to sing the National Anthem nor
is it disrespectful to the National Anthem
if a person who stands up respectfully when the National Anthem is sung does
not join the singing. Proper respect is
shown to the National Anthem by standing up when the National Anthem is sung.
It will not be right to say that disrespect is shown by not joining in the
singing. Standing up respectfully when the
National Anthem is sung but not singing oneself clearly does not either prevent
the singing of the National Anthem or cause disturbance to an assembly engaged
in such singing so as to constitute the offence mentioned in s. 3 of the
Prevention of Insults to National Honour Act.
2.1 Article 19(1)(a) of the Constitution
guarantees to all citizens freedom of speech and expression, but Article 19(2)
provides that nothing in
Article 19(1)(a) shall prevent a State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the said right. Art.
25(1) guarantees to all persons freedom of conscience and the right freely to
profess, practise and propagate religion, subject to order, morality and health
and to the other provisions of Part III of the Constitution. Art. 51-A(a) of
the Constitution enjoins a dub on every citizen of India "to abide by the
Constitution and respect its ideals and institutions, the National Flag and the National Anthem".
2.2 While on the one hand, Art. 25(1) itself
expressly subjects the right guaranteed by it to public order, morality and
health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make
a law to regulate or restrict any economic, financial, political or other
secular activity which may be associated with religious practice and to provide
for social welfare and reform, even if
such regulation, restriction or
provision affects the right guaranteed by Art. 25(1). Therefore, whenever the
Fundamental Right to freedom of conscience and to
profess, practise and propagate religion is invoked, the act complained of as
offending the Fundamental Right must be examined to discover whether such act
is to protect public order, morality and health, whether it is to give effect
to the other provisions of Part III of the Constitution or whether it is
authorised by a law made to regulate or restrict any economic, financial
political or secular activity which may be associated with religious practise
or to provide for social welfare and reform.
2.3 Any law which may be made under clauses 2 to
6 of Art. 19 to regulate the exercise of the right to the freedoms guaranteed
by Art. 19(1)(a) to (e) and (g) must be 'a law' having statutory force and not
a mere executive or departmental instructions.
The two circulars on which the Department, in
the instant case, has placed reliance have no statutory basis and are mere
departmental instructions. They cannot, therefore, form the foundation of any
action aimed at denying to citizens Fundamental Right under Art. 19(1)(a).
Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the
State, friendly relation with foreign states, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an
offence' and if not so issued, they cannot again be invoked to deny a citizen's
Fundamental Right under Art. 19(1)(a). If the two circulars are to be so
interpreted as to compel each and every pupil to join in the singing of the
National Anthem despite his genuine, conscientious religious objection, then
such compulsion would clearly contravene the rights guaranteed by Art. 19(1)(a)
and Art. 25(1).
3. The Kerala Education Act contains no
provision of relevance and the appellants in the present case have never been
found guilty of misconduct such as that
described in Chapter IX, Rule 6 of the Kerala Education Rules. On the other
hand, the report of the Commission, is to the effect that the children have always been well-behaved, law-abiding
and respectful.
4. The question is not whether a particular
religious belief or practice appeals to our reason or sentiment but whether the
belief is genuinely and conscientiously held as part of the profession or
practice of religion. Personal views and reactions are irrelevant. If the
belief is genuinely and conscientiously held it attracts the protection of Art.
25 but subject, of course, to
the inhibitions contained therein.
In the instant case, what the petitioners truly and conscientiously believe is
not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity.
The petitioners have not asserted those beliefs for the first time or out of
any unpatriotic sentiment Jehovah's Witnesses,
as they call themselves, appear to have always expressed and stood up for such
beliefs all the world over.
41. Rev.
Stainislaus v. State of M.P., AIR 1977 SC 908
The constitutional validity
of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the
High Court of Madhya Pradesh and the constitutional validity of the Orissa
Freedom of Religion Act, 1967 was challenged in the High Court of Orissa. The
two Acts prohibit forcible conversion and make the offence punishable. The
Madhya Pradesh High Court upheld
the validity of the Act. The Orissa High Court held that Art. 25(2) of the Constitution
guarantees propagation of religion and conversion is a part Christian religion;
that the State Legislature has no power to enact the impugned legislation which
in pith and substance is a law relating to religion; and that entry 97 of List
I would apply.
Upholding the validity of
both the Acts, HELD: (1) Article 25 guarantees to all persons right to freedom
and conscience and the right freely to profess, practice and propagate religion
subject to public order, morality and health. The word 'propagate' has been
used in the Article as meaning to transmit or spread from person to person or
from place to place. The Article does not grant right to convert other person to
one's own religion but to transmit or spread one's religion by an exposition of
its tenets. The freedom of religion enshrined in Art. 25 is not guaranteed in respect
of one religion only but covers all religions alike which can be properly
enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons
following other religion. What is freedom
for one is freedom for the other in equal measure and there can, therefore, be
no such thing as a fundamental right to convert any person to one's own
religion.
(2) The Madhya Pradesh Act
prohibits conversion from one religion to another by use of force, allurement
or fraudulent means and matters incidental thereto. Similarly, the Orissa Act
prohibits conversion by the use of force or by inducement or by any fraudulent
means. Both the statutes, therefore, clearly provide for the maintenance of
public order because if forcible conversion had not been prohibited that would
have created public disorder in the
States. The expression "public order" has a wide connotation.
(3) If an attempt is made to
raise communal passions, e.g. on the ground that someone has been forcibly
converted to another religion it would in all probability give rise to an apprehension of a
breach of the public order affecting the community at large The impugned Acts therefore fall
within the purview of Entry 1 of List II of the
Seventh Schedule as they are meant to avoid disturbance to the public order by
prohibiting conversion from one religion to another in a manner reprehensible
to the conscience of the
community. The two Acts do not provide
for the regulation of religion and do not fall under Entry 97 of List I.
Topic 6 : Educational and
Cultural Rights (Articles 29, 30)
Right to establish and administer educational
institutions – rights of minorities and non-minorities; Degree of State Control
in aided and non-aided educational institutions
Article 29. Protection of interests of
minorities.
(1) Any section of the citizens residing in the
territory of India or any part thereof having a distinct language, script or
culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into
any educational institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language or any of them.
Article 30. Right of minorities to establish and
administer educational institutions.
(1) All minorities, whether based on religion or
language, shall have the right to establish and administer educational
institutions of their choice.
1[(1A) In making any law providing for the
compulsory acquisition of any property of any educational institution
established and administered by a minority, referred to in clause (1), the
State shall ensure that the amount fixed by or determined under such law for
the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.]
(2) The State shall not, in granting aid to
educational institutions, discriminate against any educational institution on
the ground that it is under the management of a minority, whether based on
religion or language 2[* * *]
1. Ins. by the Constitution (Forty-fourth
Amendment) Act, 1978, s. 4 (w.e.f. 20-6-1979).
2. The sub-heading “Right to Property” omitted
by s. 5, Constitution (Forty-fourth Amendment) Act, 1978 (w.e.f. 20-6-1979).
42. Islamic
Academy of Education v. State of Karnataka, JT 2003 (7) SC 1
A 5 judge bench Clarified the doubts in TMA Pai
case( majority decision) :- Following questions arose for consideration.
1) whether the educational institutions arc
entitled to fix their own fee structure;
Observed that TMA Pai judgment very clear in this
case. Held that there can be no fixing of a rigid fee structure by the government.
Each institute must have the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution and to provide
facilities necessary for the benefit of the students. They must also be able to
generate surplus which must be used for the betterment and growth of that
educational institution.
2) whether minority and non minority educational
institutions stand on the SAME footing and have the same rights;
Held in affirmative.
Article 30(1) is a sort of guarantee or assurance
to the linguistic and religious minority institutions of their right to
establish and administer educational institutions of their choice. Secularism
and equality being two of the basic features of the Constitution, Article 30(1)
ensures protection to the linguistic and religious minorities;
Furthermore, the
principles of equality must necessarily apply to the enjoyment of such rights.
No law can be framed that
will discriminate against such minorities with regard so the establishment and
administration of educational institutions vis-a-vis other educational
institutions. Any law or rule or regulation that would put the educational
institutions run by the minorities at a disadvantage when compared to the
institutions run by the others will have to be struck down. At the same time,
there also cannot be any reverse discrimination.
Observed in St Xaviers College case, at page 192,
that "the whole object of conferring the right on minorities under Article
30 is to ensure that there will be equality between the majority and the
minority. If the minorities do not have such special protection, they will be
denied equality."
3) whether private unaided professional colleges
are entitled to fill in their seats, to the extent of 100% and if not to what
extent; and
State would determine the quotas for students to
be admitted by the Management of the unaided minority professional colleges
keeping in mind, apart from local needs, the paramount interest/need of that
community in the State.
4) whether private unaided professional colleges
are entitled to admit students by evolving their own method of admission; - Held that inter se merit to
be taken in to account.
43. T.M.A.
Pai Foundation v. State of Karnataka, AIR 2003 SC 355
An 11 judge bench of the Supreme Court headed by
Chief Justice B.N. Kripal held that the state governments and universities
cannot regulate the admission policy of unaided educational institutions run by
linguistic and religious minorities, but state governments and universities can
specify academic qualifications for students and make rules and regulations for
maintaining academic standards. The same principle applies in appointment of
teachers and other staff. An unaided minority educational institution would be
free to hire as it pleased as long as some essential qualifications were adhered
to.
Right to estb & administer educational
institutions guaranteed to all citizens u/Arts 19(1)(g) & 26 CoI and to minorities u/Art 30 CoI.
Right not limited to minorities. State is the unit to determine Linguistic
minority – Religious minority.
Right u/Art
30 cover professional institutions.
A minority instituition does not cease to be so
moment grant in aid is received. Aided instituition shall have right of
admission of students belonging to the minority group. At the same time it
would be required to admit reasonable extent of non-minority students so that
right u/Art 30(1) are not substantially impaired & further citizen’s rights
u/Art 29(2) are not infringed.
Minority education can have its own procedure or
method of admission but must be fair & transparent. Selection should be
based upon merit. In case of aided professional institutions State may prescribe
Common entrance test for admission.
Basic ratio in St Stephen case (reservation of
50% seats in aided institutions to the management’s discretion) is correct,
however rigid %age cannot be stipulated.
Court empowers State to fix quotas for minority
students taking in to account type of institution, population & educational
needs of the minorities. Court reiterated that the constitutional rights
conferred on minorities to establish & administer educational institutions
of their choice is not absolute or above other laws.
Court held unconstitutional the “Scheme” framed
by the Apex Court in Unnikrishnan case viz fixing ‘free’ & ‘payment’ seats.
Court lifted the regulation on fees to be charged by unaided institutions (i.e.
they can charge any fees) with the proviso that there would not be
‘profiteering’. No institution can charge capitation fee. Reasonable surplus to
meet the costs of expansion & augmentation of facilities does not, however
amount to profiteering.
44. P.A.
Inamdar v. State of Maharashtra, AIR 2005 SC 3236
7 Judge Bench clarified some issues raised in TMA Pai
Case & Islamic Academy Case, relating to rights of professional unaided
(minority & non-minority) institutions:-
Held
(i) Education,
accepted as a useful activity, whether for charity or for profit, is an
occupation. Nevertheless, it does not cease to be a service to the society. And
even though an occupation, it cannot be equated to a trade or a business. In
short, education is national wealth essential for the nation's progress and
prosperity.
(ii) Difference
between professional and non-professional Educational Institutions :
2.1. Education institutions imparting higher
education, i.e. graduate level and above and in particular specialized
education such as technical or professional, constitute a separate class.
Education aimed at imparting professional or technical qualifications stands on
a different footing from other educational instruction. Apart from other
provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j)
of Article 51A. Education up to undergraduate level on the one hand and
education at graduate and post-graduate levels and in professional and
technical institutions on the other are to be treated on different levels
inviting not identical considerations.
2.2. While recognition or affiliation may not be a
must for education up to undergraduate level or, even if required, may be granted
as a matter of routine, recognition or affiliation is a must and subject to
rigorous scrutiny when it comes to educational institutions awarding degrees,
graduate or post-graduate. post-graduate diplomas, and degrees in technical or
professional disciplines.
(iii) Article
19(1)(g), 29 and 30(1) : Inter-relation-ship between:
3.1. As an occupation, right to impart education is a
fundamental right under Article 19(1)(g) and, therefore, subject to control by
clause (6) of Article 19. This right is available to all citizens without
drawing a distinction between minority and non-minority. Such a right is,
generally speaking, subject to laws imposing reasonable restrictions in the
interest to the general public. In particular, laws may be enacted on the following
subjects : (i) the professional or technical qualifications necessary for
practicing any profession or carrying on any occupation, trade or business;
(ii) the carrying on by the State, or by a corporation owned or controlled by
the State of any trade, business, industry or service whether to the exclusion,
complete or partial of citizens or otherwise. Care is taken of minorities,
religious or linguistic, by protecting their right to establish and administer
educational institutions of their choice under Article 30. To some extent, what
may be permissible by way of restriction under Article 19(6) may fall foul of
Article 30. This is the additional protection, which Article 30(1) grants to
the minorities.
3.2. Pai Foundation is unanimous on the view that the
`right to establish and administer an institution', the phrase as employed in
Article 30(1) of the Constitution, comprises of the following rights : (a) to
admit students; (b) to set up a reasonable fee structure; (c) to constitute a
governing body; (d) to appoint staff (teaching and non-teaching); and (e) to
take action if there is dereliction of duty on the part of any of the
employees.
3.3. Aid and affiliation or recognition, both by
State, bring in some amount of regulation as a condition of receiving grant or
recognition. The scope of such regulations, must satisfy the following tests :
(a) the regulation is reasonable and rational; (b) it is regulative of the
essential character of the institution and is conducive to making the
institution an effective vehicle of education for the minority community or
other persons who resort to it; (c) it is directed towards maintaining
excellence of education and efficiency of administration so as to prevent it
from falling in standards. No right can be absolute. Whether a minority or a
non-minority, no community can claim its interest to be above the national
interest.
(iv) `Minority' and Minority Educational Institutions
:
4.1. With the dictum of Pai Foundation, it cannot be
doubted that minority, whether linguistic or religious, is determinable only by
reference to the demography of a State and not by taking into consideration the
population of the country as a whole. The principle would remain the same
whether it is a Central legislation or a State legislation dealing with
linguistic or religious minority.
4.2. It necessarily follows from the law laid down in
Pai Foundation that a minority institution must primarily cater to the
requirements of the minority of that State else its character of minority
institution is lost. However, a `sprinkling' of that minority from other State
on the same footing as a sprinkling of non-minority students, would be
permissible and would not deprive the institution of its essential character of
being a minority institution determined by reference to that State as a unit.
4.3. The twin objects sought to be achieved by Article
30(1) in the interest of minorities are : (i) to enable such minority to
conserve its religion and language, and (ii) to give a thorough, good general
education to the children belonging to such minority. So long as the
institution retains its minority character by achieving and continuing to
achieve these objectives, the institution would remain a minority institution.
4.4. Articles 29 and 30 are intended to confer
protection on minorities rather than a right as such. These Articles can be
better understood and utilized if read as a protection and/or a privilege of
minority rather than an abstract right.
(v) Right to establish and administer an educational
institution:
5.1 Minority educational institution, unaided and
unrecognized
Minority educational institutions not taking any aid
from the State and also not seeking any recognition or affiliation would
exercise its right under the protection and privilege conferred by Article
30(1) "to their hearts contents" unhampered by any restrictions
excepting those which are in national interest based on considerations such as
public safety, national security and national integrity, or are aimed at preventing
exploitation of students to teaching community. Such institutions cannot
indulge in any activity which is violative of any law of the land. They are
free to admit all students of their own minority community if they so choose to
do.
5.2 Minority educational institutions receiving State
aid
Conditions which can normally be permitted to be
imposed on the educational institutions receiving the grant must be related to
the proper utilization of the grant and fulfilment of the objectives of the
grant without diluting the minority status of the educational institution, as
held in Pai Foundation. As aided institutions are not before this Court nor is
the Court Called upon to deal with their cases, the discussion is left at that
only.
5.3 Minority unaided educational institutions asking
for affiliation or recognition
5.3.1 Affiliation or recognition by the State or the
Board or the University competent to do so, cannot be denied solely on the
ground that the institution is a minority educational institution. However, the
urge or need for affiliation or recognition brings in the concept of regulation
by way of laying down conditions consistent with the requirement of ensuring
merit, excellence of education and preventing mal-administration. The existence
of infrastructure sufficient for its growth can be stipulated as a
pre-requisite to the grant of recognition or affiliation. However, there cannot
be interference in the day-to-day administration. The essential ingredients of
the management, including admission of students recruiting of staff and the
quantum of fee to be charged, cannot be regulated.
5.3.2 Apart from the generalized position of law that
right to administer does not include right to mal-administer, an additional
source of power to regulate by enacting condition accompanying affiliation or
recognition exists. Balance has to be struck between the two objectives : (i)
that of ensuring the standard of excellence of the institution, and (ii) that
of preserving the right of the minority to establish and administer its
educational institution. Subject to reconciliation of the two objectives, any
regulation accompanying affiliation or recognition must satisfy the triple
tests : (i) the test of reasonableness and rationality, (ii) the test that the
regulation would be conducive to making the institution an effective vehicle of
education for the minority community or other persons who resort to it, and
(iii) that there is no in-road on the protection conferred by Article 30(1) of
the Constitution, that is, by framing the regulation the essential character of
the institution being a minority educational institution, is not taken away.
(vi) Unaided educational institutions (both minority
and non-minority) - Enforcement of reservation policy and appropriation of
quota by State
6.1 The State cannot insist on private educational
institutions which receive no aid from the State to implement State's policy on
reservation for granting admission on lesser percentage of marks, i.e. on any
criterion except merit.
6.2 Quota : Neither the policy of reservation can be
enforced by the State nor any quota or percentage of admissions can be carved
out to be appropriate by the State in a minority or non-minority unaided
educational institution. Minority institutions are free to admit students of
their own choice including students of non-minority community as also members
of their own community from other States, both to a limited extent only and not
in a manner and to such an extent that their minority educational institution
status is lost. If they do so, they lose the protection of Article 30(1).
6.3 Neither in Pai Foundation nor in Kerala Education
Bill, which was approved by Pai Foundation, is there anything which would allow
the State to regulate or control admissions in the unaided professional
educational institutions so as to compel them to give up a share of the
available seats to the candidates chosen by the State, as if it was filling the
seats available to be filled up at its discretion in such private institutions.
This would amount to nationalization of seats which has been specifically
disapproved in Pai Foundation. Such imposition of quota of State seats or
enforcing reservation policy of the State on available seats in unaided
professional institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational institutions. Such
appropriation of seats can also not be held to be a regulatory measure in the
interest of minority within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution.
6,4 Unaided institutions, as they are not deriving any
aid from State funds, can have their own admissions if fair, transparent,
non-exploitative and based on merit. The observations in paragraph 68 of the
majority opinion in Pai Foundation, are not to be read disjointly from other
parts of the main judgment. A few observations contained in certain paragraphs
of the judgment, if read in isolation, appear conflicting or inconsistent with
each other. But if the observations made and the conclusions derived are read
as a whole, the judgment nowhere lays down that unaided private educational
institutions of minorities and non-minorities can be forced to submit to seat
sharing and reservation policy of the State.
6.5 Observations on paragraph 68 merely permit unaided
private institutions to maintain merit as the criterion of admission by
voluntarily agreeing for seat sharing with the State or adopting selection
based on common entrance test of the State. There are also observations saying
that they may frame their own policy to give free-ships and scholarships to the
needy and poor students or adopt a Policy in line with the reservation policy
of the State to cater to the educational needs of weaker and poorer sections of
the society. [676-B-C]
6.6. The observations in Pai Foundation in paragraph
68 and other paragraphs mentioning fixation of percentage of quota are to be
read and understood as possible consensual arrangements which can be reached between
unaided private professional institutions and the State. [676-E-F]
6.7. In Pai Foundation, it has been very clearly held
at several places that unaided professional institutions should be given
greater autonomy in determination of admission procedure and fee structure.
State regulation should be minimal and only with a view to maintain fairness
and transparency in admission procedure and to check exploitation of the
students by charging exorbitant money or capitation fees. [676-F-G]
6.8. The scheme evolved in Islamic Academy to the
extent it allows States to fix quota for seat sharing between management and
the States on the basis of local needs of each State, in the unaided private
educational institutions of both minority and non-minority categories cannot be
approved. That part of the judgment in Islamic Academy does not lay down the
correct law and runs counter to Pai Foundation.
6.9 A limited reservation of seats, not exceeding 15%,
may be made available to NRIs depending on the discretion of the management
subject to two conditions. First, such seats should be utilized bona fide by
the NRIs only and for their children or wards. Secondly, within this quota,
merit should not be given a complete go-by. The amount of money, in whatever
form collected from such NRIs, should be utilized for benefiting students such
as from economically weaker sections of the society, whom, on well defined
criteria, the educational institutional may admit on subsidized payment of
their fee. To prevent misutilisation of such quota or any malapractice
referable to NRI qota seats, suitable legislation or regulation needs to be
framed. So long as the State does not do it, it will be for the Committees
constituted pursuant to the directions in Islamic Academy to regulate.
(vii) Admission procedure of unaided educational
institutions.
7.1. So far as the minority unaided institutions are
concerned, to admit students being one of the components of "right to
establish and administer an institution", the State cannot interfere therewith.
Upto the level of undergraduate education, the minority unaided educational
institutions enjoy total freedom. However, different considerations would apply
for graduate and post-graduate level of education, as also for technical and
professional educational institution. Such education cannot be imparted by any
institution unless recognized by or affiliated with any competent authority
created by law. Excellence in education and maintenance of high standards at
this level are a must. To fulfil these objectives, the State can and rather
must, in national interest, step in. The education, knowledge and learning at
this level possessed by individuals collectively constitute national wealth.
7.2 In minority educational institutions, aided or
unaided, admissions shall be at the State level. Transparency and merit shall
have to be assured.
7.3 There is nothing wrong in an entrance test being
held for one group of institutions imparting same or similar education. Such
institutions situated in one State or in more than one State may join together
and hold a common entrance test or the State may itself or through an agency
arrange for holding of such test
7.4 Pai
Foundation has held that minority unaided institutions can legitimately claim
unfettered fundamental right to choose the students to be allowed admissions
and the procedure therefor subject to its being fair, transparent and
non-exploitative. The same principle applies to non-minority unaided
institutions. There may be a single institution imparting a particular type of
education which is not being imparted by any other institution and having its
own admission procedure fulfilling the test of being fair, transparent and
non-exploitative. All institutions imparting same or similar professional education
can join together for holding a common entrance test satisfying the abovesaid
triple tests. The State can also provide a procedure of holding a common
entrance test in the interest of securing fair and merit-based admissions and
preventing mal-administration. The admission procedure so adopted by private
institution or group of institutions, if it fails to satisfy all or any of the
triple tests, can be taken over by the State substituting its own procedure.
The second question is answered accordingly.
7.5 It needs to be specifically stated that having
regard to the larger interest and welfare of the student community to promote
merit, achieve excellence and curb mal-practices, it would be permissible to
regulate admissions by providing a centralized and single window procedure.
Such a procedure, to a large extent, can secure grant of merit based admission
on a transparent basis. Till regulations are framed, the admission committees
can oversee admission so as to ensure that merit is not the casualty.
(viii) Fee regulation & Capitation Fee
8.1 To set up a reasonable fee structure is also a
component of "the right to establish and administer an institution"
within the meaning of Article 30(1) of the Constitution, as per the law
declared in Pai Foundation. Every institution is free to devise its own fee
structure subject to the limitation that there can be no profiteering and no
capitation fee can be charged directly or indirectly, or in any form.
8.2 Capitation
fee cannot be permitted to be charged and no seat can be permitted to be
appropriated by payment of capitation fee. If capitation fee and profiteering
is to be checked, the method of admission has to be regulated so that the
admissions are based on merit and transparency and the students are not exploited.
It is permissible to regulate admission and fee structure for achieving the
said purpose.
(ix) Committees formed pursuant to Islamic Academy
9.1. Pai Foundation upheld Unni Krishnan to the extent
to which it holds the right to primary education as a fundamental right, but
overruled the scheme relating to grant of admission and fixing of fee. However,
the principle that there should not be capitation fee or profiteering was
upheld. Leverage was allowed to educational institutions to generate reasonable
surplus to meet cost of expansion and augmentation of facilities which would
not amount to profiteering.
9.2. The two committees for monitoring admission
procedure and determining fee structure in the judgment of Islamic Academy are
permissible as regulatory measures aimed at protecting the interest of the
student community as a whole as also the minorities themselves, in maintaining
required standards of professional education on non-exploitative terms in their
institutions. Legal provisions made by the State Legislatures or the Scheme
evolved by the Court for monitoring admission procedure and fee fixation do not
violate the right of minorities under Article 30(1) or the right of minorities
and non-minorities under Article 19(1)(g). They are reasonable restrictions in
the interest of minority institutions permissible under Article 30(1) and in
the interest of general public under Article 19(6) of the Constitution. Unless
the admission procedure and fixation of fees is regulated and controlled at the
initial stage, the evil of unfair practice of granting admission on available
seats guided by the paying capacity of the candidates would be impossible to
curb.
9.3. Non-minority unaided institutions can also be
subjected to similar restrictions which are found reasonable and in the
interest of student community - Minorities or non-minorities, in exercise of
their educational rights in the field of professional education, have an
obligation and a duty to maintain requisite standards of professional education
by giving admission based on merit and making education equally accessible to
eligible students through a fair and transparent admission procedure and based
on a reasonable fee-structure.
9.4. The judgment in Islamic Academy, in so far as it
evolves the scheme of two Committees one each for admission and fee structure,
does not go beyond the law laid down in Pai Foundation and earlier decisions of
this Court, which have been approved in that case. The scheme cannot be faulted
either on the ground of alleged infringement of Article 19(1)(g) in case of
unaided professional educational institutions of both categories and Article
19(1)(g) red with Article 30 in case of unaided professional institutions of
minorities. However, the observation by way clarification, contained in the
latter part of para 19 of Islamic Academy which speaks of quota and fixation of
percentage by State Government is rendered redundant and must go.
9.5. A fortiori, there does not seem to be any
impediment to the constitution of the Committees as a stopgap or adhoc
arrangement made in exercise of the power conferred on this Court by Article
142 of the Constitution until a suitable legislation or regulation framed by
the State steps in. Such Committees cannot be equated with Unni Krishnan
Committees which were supposed to be permanent in nature.
9.6. The Committees are expected, so long as they
remain functional, to be more sensitive and to act rationally and reasonably
with due regard for realities The should refrain from generalizing fee
structures and, where needed, should go into accounts, schemes, plans and
budgets of an individual for the purpose of finding out what would be an ideal
and reasonable fee structure for that institution.
9.7. It is made clear that in case of any individual
institution, if any of the Committees is found to have exceeded its powers by
unduly interfering in the administrative and financial matters of the unaided
private professional institutions, the decision of the Committee being
quasi-judicial in nature, would always be subject to judicial review. [683-G-H]
9.8. It is for the Central Government or for the State
Governments, in the absence of a Central legislation, to come out with a
detailed well thought out legislation on the subject. Such a legislation is
long awaited. States must act towards this direction. Till then, the Committees
regulating admission procedure and fee structure shall continue to exist, but
only as a temporary measure.
Topic 7 : Right to
Constitutional Remedies (Article 32) [deleted from
syllabus]
Power of Judicial Review under Article 32 is a
basic feature of the Constitution; Concurrent jurisdiction of the High Courts
under Article 226 – Res judicata; Laches, Rule of locus standi, Public Interest
Litigation; Existence of alternative remedies; Nature and scope of relief
Topic 8 : Fundamental
Duties (Article 51A) [deleted from syllabus]
45. Hon’ble Shri Rangnath Mishra v. Union of
India, JT 2003 (7) SC 206
Topic 9 : Directive
Principles of State Policy (Articles 36 - 51) [deleted from
syllabus]
Importance; Relationship, and the effect of
inconsistency, between the Fundamental Rights and legislations aimed at
implementing the Directive Principles of State Policy. Some significant
legislations shall be mentioned
Topic 10 : Civil Servants
(Articles 308 - 323) [deleted from syllabus]
Doctrine of Pleasure; Power to regulate the
recruitment and conditions of service of civil servants; Constitutional
Protection to Civil Servants; All India Services
46. Union of India v. Tulsiram Patel, AIR 1985
SC 1416 : (1985) 3 SCC 398
47. J.P. Bansal v. State of Rajasthan, AIR 2003
SC 1405 (2003) 5 SCC 134
48. Managing Director, ECIL v. B. Karunakar, AIR
1994 SC 1074
49. T.N. Rangarajan v. Govt. of Tamil Nadu, AIR
2003 SC 3032
Topic 11 : Amendment of the
Constitution (Article 368)
Power and Procedure to amend the Constitution;
Limitations on amending Power -Doctrine of Basic
Feature/Structure; (Kesavananda Bharti
Judicial Review of Legislations included in the
Ninth Schedule - The Ninth Schedule to the Constitution provides a list of laws
which are not amenable to judicial review and in terms of other provisions of
the Constitution, these laws cannot be invalidated on grounds of violation of a
fundamental right. Typically these laws constitute those which relate to land
acquisition and those relating to right of a citizen to hold property. A
nine-judge bench of the Supreme Court in I.R.
Coelho v. State of Tamil Nadu [(2007) 2 SCC 1] declared that despite
the said stipulation, in view of the doctrine of basic structure (which
includes 'judicial review') it was open to the Supreme Court to examine the
validity of such laws
Article 368. Power of Parliament to amend the
Constitution and procedure therefor.
368 1[Power of Parliament to amend the Constitution
and procedure therefor.]
2[(1) Notwithstanding anything in this
Constitution, Parliament may in exercise of its constituent power amend by way
of addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.]
3[(2)] An amendment of this Constitution may be
initiated only by the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a majority of the
total membership of that House and by a majority of not less than two-thirds of
the members of that House present and voting, 4[it, shall be presented to the
President who shall give his assent to the Bill and thereupon] the Constitution
shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make
any change in-
(a) Article 54, article 55, article 73, article
162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI,
or Chapter I of Part XI, or
(c) Any of the Lists in the Seventh Schedule, or
(d) The representation of States in Parliament,
or
(e) The provisions of this article, the
amendment shall also require to be ratified by the Legislatures of not less
than one-half of the States 5[***] by resolutions to that effect passed by
those Legislatures before the Bill making provision for such amendment is
presented to the President for assent.
6[(3) Nothing in article 13 shall apply to any
amendment made under this article.]
7[(4) No amendment of this Constitution
(including the provisions of Part III) made or purporting to have been made
under this article [whether before or after the commencement of section 55 of
the Constitution (Forty-second Amendment) Act, 1976] shall be called in
question in any court on any ground.
(5) For the removal of doubts, it is hereby
declared that there shall be no limitation whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal the provisions of
this Constitution under this article.]
1. Subs. by the Constitution (Twenty-fourth
Amendment) Act, 1971, s. 3, for “Procedure for amendment of the Constitution.”.
2. Ins. by s. 3. the Constitution (Twenty-fourth
Amendment) Act, 1971.
3. Art. 368 renumbered as cl.(2) by s. 3, the
Constitution (Twenty-fourth Amendment) Act, 1971.
4. Subs. by s. 3, ibid., for “it shall be
presented to the President for his assent and upon such assent being given to
the Bill”.
5. The words and letters “specified in Parts A
and B of the First Schedule” omitted by the Constitution (Seventh Amendment)
Act, 1956, s. 29 and Sch.
6. Ins. by the Constitution (Twenty-fourth
Amendment) Act, 1971, s. 3.
7. Cls. (4) and (5) were ins. in article 368 by
s. 55 of the Constitution (Forty-second Amendment) Act, 1976. This section has
been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs.
Union of India and Others (1980) 2 S.C.C. 591.
50. I.R.
Coelho v. State of Tamil Nadu, AIR 2007 SC 861 : (2007) 2 SCC 1
The Constitution bench of 5 judges referred the
case to higher bench. The problem that drew attention before the nine judge
bench was whether such evasion of judicial review, using the constitutional
device of Article 31B, violates the basic structure, therefore making the
exercise of Article 31B r/w Article 368 (post-1973), a violation of basic
structure. The above judgments drew the
attention of the nine judges.
On January 11 2007 while delivering the judgment
the 9 Judge Constitutional Bench of the Supreme Court held that All amendments
to the Constitution made on or after 24th April 1973 by which the Ninth
Schedule is amended by inclusion of various laws therein shall have to be
tested on the touchstone of the basic or essential features of the Constitution
as reflected in Article 21 read with Article 14, Article 19, and the principle
underlying them.
To put it differently even though an Act is put
in the Ninth Schedule by a Constitutional Amendment, its provision would be
open to attack on the ground that they destroy or damage the basic structure if
the fundamental right or rights is/are taken away or abrogated pertains or
pertain to the basic structure.
The Supreme Court further stated that if the
validity of any Ninth Schedule law has already been upheld by this Court, it
would not be open to challenge such law again on the principles declared by
this judgment. However, if a law held to be violative of any rights in Part III
of the Constitution is subsequently incorporated in the Ninth Schedule after
24th April 1973, such a violation / infraction shall be open to challenge on
the ground that it destroys or damages the basic structure as indicated in
Article 21 read with Article 14, Article 19, and the principles underlying
there under.
Majority judgment in Kesavananda Bharti case
read with Indira Gandhi case requires the validity of each Constitutional
amendment to be judged on its own merits. Impact test (whether it destroys the
basic structure) would determine the validity of the challenge.
Justification for conferring protection, not
blanket protection on the laws included in the IXth Schedule by Constitutional
Amendments shall be a matter of Constitutional adjudication by examining the
nature & extent of infraction of a FR by a statute.
The constitutional validity of the Ninth
Schedule Laws on the touchstone of basic structure doctrine can be adjudged by
applying the direct impact and effect test, i.e., rights test, which means the
form of an amendment is not the relevant factor, but the consequence thereof
would be determinative factor.
Action taken and transactions finalized as a
result of the impugned Acts shall not be open to challenge.
51. Kesavananda
Bharati v. State of Kerala, AIR 1973 SC 1461
SC -> 'Theory of Basic Structure' - not
amendable by Parliament by exercise of its constituent power under Article 368
24th, 25th and 29th ammendments to the
Constitution of India challenged - main questions related to nature, extent
& scope of amending power of Parliament under the Constitution
View of the majority
(1) L.C. Golaknath vs State of Punjab AIR 1967
SC 1643 (which had held that fundamental rights were beyond amending Powers of
the Parliament) was overruled;
(2) The Constitution (24th Amendment) Act 1971
(giving power to Parliament to amend any part of the Constitution) was valid;
(3) Article 368 as amended was valid but it did
not confer power on the Parliament to alter the basic structure or framework of
the Constitution; The court, however did not spell out in any exhaustive manner
as to what the basic structure/framework ws except that some judges gave a few
examples
(4) The amendment of Article 368(4) excluding
judicial review of a constitutional amendment was unconstitutional.
(5) The amendment of Article 31C containing the
words "and no law containing a declaration that it is for giving effect to
such policy shall be called in question in any court on the grounds that it
does not give effect to such policy" was held invalid;
Basic structure may be said to consist of the
following (SM Sikri CJ.)
(i) Supremacy of the constitution
(ii) Republican and democratic forms of
Government;
(iii) Secular character of constitution
(iv) Separation of power between the
legislature, the executive and the judiciary;
(v) Federal character of the constitution
(Landmark case:- 13 Judges gave 11 distinct
opinions)
It was held in this case (wrt Preamble):
a. that the Preamble to the Constitution of
India is a part of Constitution
b. that the Preamble is not a source of power
nor a source of limitations
c. the Preamble has a significant role to play
in the interpretation of statues, also in the interpretation of provisions of
the Constitution.
52. Kihoto
Hollohon v. Zachillhu, AIR 1993 SC 4120 [ Anti Defection law case]
Para 7 of the Xth Schedule of CoI inserted by 52nd
Amendment Act, 1985 excluding jurisdiction of all courts including the SC under
Art 136 & the HC under Art 226 & Art 227 on the question of
disqualification on the ground of defection was struck down as unconstitutional
since it was not enacted complying with the requirements of Proviso to Art
368(2) which required ratification of the amendment by at least half of the
State legislatures.
53. L.
Chandra Kumar v. Union of India, AIR 1997 SC 1125
Issues
1. Whether the power conferred upon the Parliament by
Article 323-A (2) (d) or upon the State Legislature by Article 323-B (3) (d) of
the Constitution of India, to totally exclude the jurisdiction of ‘all courts’,
except that of the Supreme Court under Article 136, in respect of disputes and
complaints referred to in Article 323-A (1) or with regard to all or any of the
matters specified in Article 323-B (2), runs contrary to the power of judicial
review conferred on the High Court under Articles 226/227 and on the Supreme
Court under Article 32 of the Constitution of India?
2. Whether the Tribunals constituted either under
Article 323A or under Article 323B of the Constitution, possess the competence
to test the constitutional validity of a statutory provision or rule?
3. Whether the Tribunals, as they are functioning at
present, can be said to be the effective substitutes for the High Court in
discharging the power of judicial review? If not, what are the changes required
to make them conform to their founding objectives?
Ratio
- Power of judicial review over legislative action
vested in the High Courts and the Supreme Court under Articles 226 and 32
respectively is the basic structure of the Constitution.
- Power of judicial superintendence over decisions of
all courts and Tribunals within their jurisdiction is the basic structure of
the Constitution
- Judicial review of legislative action in exercise of
power by subordinate judiciary or Tribunals created under ordinary legislation
cannot be to the exclusion of the High Courts and the Supreme Court. However
they can perform supplemental – as opposed to substitutional – role in this
respect.
- Tribunals constituted under Articles 323A and 323B
have the power to test vires of subordinate legislation except vires of their
parent statutes. All its decisions would be subject to scrutiny before Division
Bench of their respective High Courts under Articles 226/227. No appeal would
lie directly to the Supreme Court under Article 136. The said direction would
operative prospectively.
- Appointment of Administrative members need not be
stopped.
- Till a wholly independent body is set for the
purpose of overseeing the working of the Tribunals, all such Tribunals will be
under single nodal ministry whose members would be appropriately be a Ministry
of Law.
Source: L CHANDRA KUMAR Vs. UNION OF INDIA – A CASE
STUDY || QuiQinQ.com
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