This article is written by Soumya Lenka. The article discusses the background, pertinent facts, arguments of both the sides and the court’s reasoning while delivering the verdict. The case deals with a Lok Prahari society who is the petitioner in the present case. A public interest litigation was filed against the Election Commission of India primarily contending that a stay order against the conviction of a member of Parliament and that of a State Legislature on ground of any offence must not dissolve the effect of the prior disqualification and that the disqualification of the member should not be revived in a retrospective manner.
Table of Contents
Introduction
The case deals with the disqualification of a Member of Parliament (MP) and that of a State Legislature on the grounds mentioned under Section 8 of the Representation of the People Act, 1951 (hereinafter mentioned as ‘the Act’). This case sheds light on the stay of conviction on the disqualification of an elected member. The Petitioner in the impugned case is a society which has filed a public interest litigation mainly to cement a loophole in the scheme of Articles 101 and 190 of the Indian Constitution and Section 8 of the Act. The loophole here being addressed is that of legislative imprudence and notoriety.
The case is based on a peculiar situation when a MP or MLA (Member of Legislative Assembly) is convicted of any offence under Section 8 of the Act. On such conviction, he is subjected to disqualification under Section 8 of the Act. In that case, if on an appeal by the so convicted member, a stay order is passed, then what will its effect on the prior disqualification is the subject matter of the case.. The Petitioner prays to declare that in case of any such situation, the disqualification should continue and ought not to be revoked on the ground of this loophole in the scheme of the provisions.
Petitioner: Lok Prahari, through its General Secretary SN Shukla
Respondents: Election Commission of India
Case type: Writ Petition (Civil)
Court: Supreme Court of India
Bench: Hon’ble Justice Dhananjaya Y Chandrachud, A M Khanwilkar, Dipak Misra
Author of the Judgement: Dhananjaya Y Chandrachud
Date of judgement: 26.09.2018
Citation: (2018) 18 SCC 114
Facts of the case
The case concerns itself with a Public Interest Litigation (PIL) filed by Lok Prahari, an organisation registered under the Societies Registration Act, 1860. The organisation has prayed primarily that in case of a stay order being issued, conviction of any MP or State Legislature, in case of any proceedings, then the same should not have any effect on the prior disqualification of the members. The inception of this case lies in a prior stay order issued by the Ld. District and Sessions Court of Lucknow.
One member of the State Legislature of Uttar Pradesh was convicted of offences under Sections 353, 504 and 506 of The Indian Penal Code (IPC), 1860 (now Sections 132, 352 and 351 of Bharatiya Nyaya Sanhita, 2023) and was sentenced to imprisonment by the Ld. Trial Court of Lucknow. As envisaged under Section 8 of the Act, the said member was subject to disqualification as he was convicted by the Trial Court. On an appeal by the convicted in the District and Sessions Court of Lucknow, the Ld. District Court, after a strict perusal of the facts and circumstances of the case, stayed the conviction order of the convicted appellant.
In furtherance of which, the Petitioner, Lok Prahari, organisation filed a Public Interest Litigation (PIL) under Article 226 of the Indian Constitution in the Lucknow Bench of the Allahabad High Court. The Petitioner argued that the stay order passed by the Ld. District and Sessions Court of Lucknow has nothing to do with the disqualification of the convict member and hence, the disqualification must continue irrespective of the said stay order passed by the Ld. District Court. The PIL was dismissed by the Hon’ble High Court of Allahabad on the ground that the stay order cannot be ignored while considering whether a member of the house is to be disqualified or not. In case, a stay order has been passed by the Ld. District Court of Lucknow, the Hon’ble High Court held that the same negates the effect of prior disqualification and hence the disqualification ceases to operate from the day the stay order was passed.
Aggrieved by this decision of the Hon’ble High Court of Allahabad, the petitioner, Lok Prahari, approached the Hon’ble Apex Court by invoking its writ jurisdiction (under Article 32 of the Indian Constitution). The petitioner has primarily prayed for three things-
At first, the petitioner prayed that the Ld. District Court as well as the Hon’ble Allahabad High Court had erred in correlating the stay order and its negating effect on the disqualification of the member. The Petitioner prayed that Section 8 of the Act, read with Articles 101(3)(a) and 190(3)(a) leaves no scope for a stay order in case of conviction of a appellant and in case, there is a stay order, the same has no effect on the disqualification of the member and the member shall stand disqualified from the date of his or her conviction irrespective of a stay order.
Further, the petitioner prayed that as the member is disqualified as per the postulations so provided under Section 8 of the Act, he or she shall be liable for penalty under Articles 104 and 193 of the Indian Constitution as per the case may be. In this case also, it was prayed that a stay order should not have any bearing on this penalty obligation by the convicted member.
Further, the petitioner prayed that a writ or order or direction must be issued stating that the convict member of the State Assembly should vacate his or her seat under Section 151 of the Act, and any order or direction of any Revisional Court or Appellate Court would not have any bearing on the same.
Issues raised in the case
Whether the Ld. District and Sessions Court of Lucknow erred in staying the disqualification of the convict member of the Uttar Pradesh State Assembly subsequent to the stay order on conviction passed by the Ld. Court ?
Whether the Ld. High Court of Allahabad erred in upholding the stay on the disqualification of the convict member of the UP State Assembly subsequent to the stay order passed by Ld. District and Sessions Court, Lucknow?
Whether a stay order retrospectively dilutes the disqualification of a convict member?
Arguments of the parties
Petitioner
The petitioner, Lok Prahari organisation, contended that the seat held by a MP or the State Legislature should become vacant after a disqualification under Article 102 or Article 191 of the Indian Constitution. The petitioner contended that prima facie, if the ingredients under Section 8 of the Act are satisfied, then a member of the Parliament or that of the State Legislature is to vacate his or her seat in accordance with Articles 102 and 191 of the Constitution. He or she is no longer eligible to hold a seat in the house.
The petitioner contended that on a disqualification incurred under Section 8 of the Act, the convict member is no longer eligible to hold a seat in the house from the date of his or her conviction and there is no explicit or implicit clause whatsoever in the Articles 102 or 191 as well as that of Section 8 of the Act, which leaves any scope in future that the disqualification so incurred after conviction might to be subject to revocation in case of a judicial proceeding or appeal.
Relying on the landmark verdict of the Hon’ble Supreme Court in B.R. Kapoor vs. State of Tamil Nadu (2001), wherein the Hon’ble Apex Court explicitly held that as envisaged under Section 389 of Code of Criminal Procedure (hereinafter referred to as CrPC) [now Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)] any Appellate Court does not have the authority or power to stay the order of conviction passed by the lower court/Trial Court. The only power conferred upon the Appellate Court is to stay the execution of the sentence so passed by the Trial Court till the proceedings come to a conclusion, and a verdict to that effect is passed by the Appellate Court after adjudication of the matter.
The Ld. petitioner further submitted that the revival of membership in a retrospective manner, as has been done in the impugned case by the Ld. District and Sessions Court of Lucknow opens a huge loophole for all the convicted MPs and MLAs to escape the disqualification. The petitioner further substantiating its claim submitted that this loophole will completely dilute the sanctity of electorate or representative democracy.
It was submitted that in case, a member of the Parliament or member of any State Legislature as is in the present case is convicted of any act mentioned under Section 8 of the Act, which makes him or her disqualified from holding any position of the house, he or she can use this floodgate or loophole to approach the Appellate Court and get a stay order on the conviction. Thereby, he or she is eligible to continue as a member of the State Legislature or Parliament by retrospectively revoking the prior disqualification. This is nothing but an absolute mockery of parliamentary democracy as well as of the judiciary.
It was submitted that this will open a floodgate, which will enable the MLAs or MPs already convicted by the Trial Courts under Section 8 of Act, to override the protection conferred under Section 8(4) of the Act, by approaching the Revisional Court relying a stay on the conviction order so passed by the Ld. Trial Courts. If they manage to get a stay on the conviction order by the Appellate Courts, then this will retrospectively dilute their disqualification and will render Section 8 of the Act, redundant.
The petitioner further contends that Section 389 of CrPC empowers the Revisional or Appellate Court to suspend or put a stay order on the execution of a conviction. It was submitted that it in no way authorises the Ld. Appellate Courts to put a stay on the entire conviction sentence passed by the Ld. Trial Courts. Hence, relying on this provision, the petitioner contended that the Ld. District Court has arbitrarily put a stay order on the conviction beyond its adjudicating scope, and hence even the stay order passed by the Ld. District Court is devoid of any merits and lacks the sanction of law.
It was further submitted by the petitioner in a rejoinder that the role of the Election Commission starts immediately with the conviction order or decree of a said MP or any State Assembly. The Election Commission is authorised as well as obliged to act immediately after such a conviction decree has been passed. The Election Commission should vacate the seat of the convicted member immediately after such conviction order as it is an independent body and there is no requirement of waiting for any receipt of a notification or directive from the Secretariat of the Legislature in any way.
Further, the petitioner contends that there is no requirement of any notification from the secretariat. To assert this position, the petitioner submitted that such a postulation or requirement is found nowhere within the schemes of Article 101 (3) (2) and Article 190 (3) (a) of the Indian Constitution. Hence, the Election Commission in the impugned case by awaiting a notification by the Secretariat of the Uttar Pradesh Assembly, has acted beyond the contours of law. Thereby, it was contended that a writ of mandamus may be issued to the Election Commission to initiate action as soon as possible in furtherance of the vacation of the seat of the convicted member.
Respondent
In response to the allegations made by the Ld. petitioner, the Election Commission reacting in a positive manner has agreed to some of the contentions of the Petitioner. The Election Commission has issued instructions to that effect and has held in a counter affidavit that the seat of the so convicted member should be vacated within seven days of such order or decree by the Trial Court.
Further, the Election Commission has emphasised on the decision of Lily Thomas vs. Union of India & Ors(2013). In this case the Hon’ble Supreme Court has held that there is an automatic disqualification in case a member of the Parliament or that of the State Legislatures is convicted under any of the offences mentioned under Section 8 of the Act. Hence, upholding the contention of the petitioner that the stay order has no effect on such disqualification, the election commission admitted that there is no ground or provision whatsoever which provides for postponing the disqualification of the said convict member. Hence, it was of the opinion that an appeal and a subsequent stay order on conviction could not dilute the disqualification of the member in a retrospective manner.
The Election Commission submitted that there is no requirement under Articles 103 and 192 of the Indian Constitution that an order or directive from the Governor or the President is to be required to give effect to the disqualification of the member who is convicted and vacation of the seat and that the same becomes operative immediately after the order by the Trial Court.
The Election Commission of India emphasised on the landmark decision of P.V Narasimha Rao vs. State (CBI/SPE) (1998), wherein it was held that no decision or directive of the President or Governor is required whatsoever in case of disqualification of a member of a legislature on any grounds envisaged under Section 8 of the Act.
The respondents were primarily represented by the Attorney General of India. The Union submitted that the issues and contentions of the petitioner have already been considered by the Hon’ble Supreme Court while adjudicating on the landmark case of Lily Thomas vs. Union of India & Ors. Hence, it was submitted that the issues raised by the petitioner would just be a waste of the valuable time of the judiciary as the same have already been considered, and hence the petition is liable to be dismissed.
The respondents submitted that the issues and contentions of the petitioner in no way challenges any provision of any Act or rules whatsoever in particular. Hence, the same is a baseless petition and shall not be considered as a Public Interest Litigation. Furthermore, the respondent submitted that the petitioner has only relied on the provisions of law and on judicial pronouncements on the subject of disqualification on conviction and no such reasoning can be deduced from the said judicial pronouncements that a stay on conviction of a member of the house does not affect the prior disqualification of the convict member. It was submitted that the contentions of the petitioner are prima facie flawed and should be hereby dismissed.
Laws involved in Lok Prahari vs. Election Commission of India (2018)
Article 101 of the Indian Constitution
The case deals with the disqualification of a member of the Uttar Pradesh State Assembly, and hence, this provision of the Indian Constitution holds pivotal importance in the case. Article 101 of the Indian Constitution provides for vacation of seats in case of disqualification of members. The pertinent clause 3 of the Article 101 has been invoked primarily in the present case. It provides that a member is subject to vacation of seats in case of disqualification on the grounds mentioned under Article 102 (1) and (2) of the Indian Constitution.
Article 102 of the Indian Constitution
Article 102 of the Indian Constitution provides for disqualification of membership. It postulates several grounds on which a MP or that of a State Assembly is subject to disqualification. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament–
If the member holds any office of profit under the Government of India or the Government of any State;
If the member is of unsound mind;
If the member has been declared insolvent;
If the member is not a citizen of India or has accepted the citizenship of any other country;
If the member is so disqualified to be a part of the Parliament under any law made by it;
Further the member shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
The same finds mention in the present case as the convict respondent No. 2 (the convicted member of the U.P State Assembly) was disqualified (before the stay order on conviction) under Article 102(1)(e) of the Constitution on the ground that he has been convicted of an offence under Representation of Peoples Act, 1951.
Section 8 of the Representation of People’s Act, 1951
Section 8 of the Act, provides for offences under which a member of the Parliament or that of a state assembly, if convicted, will be subject to disqualification under Article 102(1)(e) of the Indian Constitution. There are offences under which if a member is convicted, he or she will be subject to disqualification under this Section.
The offences under the said provision includes-
Any person convicted under Section 153A of IPC, [now Section 196 of Bharatiya Nyaya Sanhita (BNS)] for promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc. or under Section 171E (now Section 170 of BNS (offence of bribery) or Section 171F (now Section 174 of BNS) (offence of undue influence or personation at an election)
Any person who is convicted under Section 375 or 376 of IPC (now Section 64 of BNS) for heinous offences like rape or under Section 498A of IPC (now Section 85 of BNS) for domestic violence.
The impugned case deals with the three provisions under which the respondent No. 2 was convicted. He was convicted under Sections 353, 504 and 506 of the Indian Penal Code, 1860. The convicted member falls under Section 8 (3) and hence is liable to be disqualified. In a major turn of events, the conviction was subsequently stayed by the Appellate Courts and a PIL was filed in the Apex Court for the final hearing.
Judgement of the case
The bench consisted of Hon’ble Justices Dhananjaya Y. Chandrachud, A M Khanwilkar, and Dipak Misra. The verdict was a unanimous one wherein it was held that a disqualification under sub-section (1), (2), or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the CrPC or the High Court under Section 482 of the CrPC .
The court held that there is no merit in the contention of the petitioner that Section 389 of CrPC doesn’t explicitly confer the power on the Appellate Court to order a stay on conviction. The court relying on the landmark judgement of Ram Narang vs. Ramesh Narang (1995) held that it is well settled that Section 389 is quite wide in its ambit and scope and confers the power to order a stay on conviction as well as execution on the sentence of a Trial Court. The court, hence, held that the case of the Petitioner is devoid of any merits and shall be thereby disposed of.
Rationale behind the judgement
The court adjudicating on the power and authority of the Appellate Court relied on the landmark decision of Rama Narang vs. Ramesh Narang (1995). Further, in the impugned case, it was held that an order of conviction does not ensure execution of the same. In other words, an order or decree of conviction is not by itself capable of execution under the provisions of CrPC. But in the same case, the court held that only in certain circumstances, the conviction order or decree is executable. If the same reasoning is applied to the present case, the court held that the conviction order in the present case is prima facie executable, then that would lead to immediate disqualification of the convict respondent No. 2.
Further, the court held that before adjudicating on the scope and ambit of the powers conferred on the Appellate Courts, it is pertinent to delve deeper into the actual meaning and scope of Section 389 (1) of the CrPC. The court after a strict perusal of the scope and ambit of the impugned provision held that the Appellate Courts are conferred with the power to stay the conviction under the said provision.
The court contemplating on the contention of the petitioner that the scope of Section 389(1) is very narrow and that the stay of conviction does not have any diluting effect on the disqualification of the member held that the same is flawed and is devoid of any merits. The court held that the Section 389(1) read with Section 374 of the CrPC confers powers in the Appellate Courts to reverse the decision of the Trial Courts as well as stay the conviction and the execution of the sentence. Therefore, to construe that the stay of conviction does not have any effect on the order of conviction issued beforehand by the Trial Court will be a contempt of the very procedure ingrained within the Criminal Procedure Code.
The court further relied on the landmark verdict of Navjot Singh Sidhu vs. State of Punjab (2007). The court, hence, held that under Section 389 of CrPC, the Appellate Court is well within its contours to order for a stay on the conviction but condition applied that the convict appellant needs to satisfy the court of the consequences that may follow against him or her if such a stay order is not passed thereof.
The court stated that it is true that a stay of conviction should be granted in special cases, and this is not the rule and is to be used in rare cases where the situation so requires or demands. The Hon’ble Bench held that the impugned case is such a rare one in which the District and Sessions Court of Lucknow as well as the High Court of Allahabad has not only stayed the execution of sentence but has also put a stay on the conviction order of the convict respondent No. 2. The bench held that as the conviction itself is stayed by the Appellate Courts after due consideration of material facts and circumstances of the case the same dilutes the disqualification of the convict respondent.
Adjudicating on whether a stay order has any effect on the prior disqualification of a member or not, the court relied on the decision of Ravikant S. Patil vs. Sarvabhouma S. Bagali (2006). The bench held that when a stay order is passed on conviction, the same has an effect on the disqualification of the member so convicted. It held that the stay order basically dilutes the prior disqualification based on the conviction. It was held that the convict respondent and his disqualifications ceased to operate when the District and Sessions Court of Lucknow, considering the special circumstances, granted a stay on the conviction. Further, the same was held by the High Court of Allahabad, and hence, the disqualification for the time is diluted and the member is not obliged to vacate his seat. He has all the right as a respected member of the Uttar Pradesh State Assembly to continue as its member unless and until the stay order is revoked.
Therefore, the disqualification under sub-sections (1), (2), or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the CrPC (powers conferred on the District and Sessions Court) or the High Court under Section 482 (appellate jurisdiction of the High Court in case of criminal matters) of the CrPC .
Relevant judgements referred in the case
B.R. Kapoor vs. State Of Tamil Nadu And Anr (2001)
In this impugned case, it was opined by the Hon’ble Supreme Court that under Section 389 of CrPC, the Appellate Courts have the power to stay the execution of a sentence of the Lower/Trial Court. This decision has been relied upon by the petitioner to substantiate its claim that the Appellate Courts do not have the power to order a stay on conviction and the power is rather confined to order a stay only on the execution of the sentence.
Rama Narang vs. Ramesh Narang (1995)
In this impugned case, the Hon’ble Supreme Court had held that the Appellate Courts nevertheless have the power to order a stay on the execution as well as that of the conviction. But the latter is to be used or passed by the Appellate Courts in rare cases where the convict appellant may face serious repercussions if a stay order to that effect is not passed. This Case was relied upon by the Hon’ble Bench in the present case to determine the scope and ambit of Section 389 of the CrPC.
Navjot Singh Sidhu vs. State Of Punjab & Anr (2007)
In this case, a two judge bench of the Supreme Court held that a stay order on conviction shall be resorted to by the Appellate Courts only in rare cases where the repercussions of not passing a stay order will be adversarial to the convict appellant. This Case was referred to by the Hon’ble Bench in the present case to adjudicate on the validity of the stay order passed by the District and Sessions Court Lucknow under Section 389 of the CrPC.
Analysis of the case
This case serves as a landmark precedent on the powers of the Appellate Courts under the CrPC. The court has shed light and cleared the standing as far as the power of stay under Section 389 of CrPC is concerned. The court made it clear that Section 389 of the CrPC doesn’t only confer the power to stay the execution of sentence ordered by a Trial Court by the Appellate Courts but also that the provision is quite wide in its scope and ambit and provides the Appellate Courts to order a stay on the conviction in case of special/rare circumstances where the same seems necessary to protect the rights of the convict appellant. The case also sheds light on Section 8 of the Act.
It makes it clear that a member ought to be disqualified from the membership of the Parliament or that of the State Legislature in case he or she gets convicted of any offence mentioned within Section 8 of the Act. Further, the case serves as a precedent on the effect of stay. It asserts the position that when a stay order on conviction is passed by the Appellate Courts, the prior consequences which arise out of the said conviction will automatically get diluted or imperative as a matter of the stay order. In the impugned case, the same happens with the disqualification of the convict member of the U.P state assembly. His disqualification was revoked as a matter of a stay order passed by the District and Sessions Court Lucknow under Section 389 of the Criminal Procedure Code.
Conclusion
The case marks its inception with the disqualification of a member of the Uttar Pradesh State Assembly on the ground that he has been involved with offences under Sections 353, 504 and 506 of the Indian Penal Code, 1860. He further appeals in the District and Sessions Court, Lucknow being aggrieved by the decision of the lower court. After having a strict scrutiny of the facts and circumstances of the case, the District Court passes a stay order on his conviction which dilutes his disqualification from the State Assembly. Now aggrieved by this stay order and the revocation of disqualification by the District and Sessions Court Lucknow, an organisation named Lok Prahari filed a writ petition in the High Court of Allahabad to consider the decision of the District and Sessions Court.
The High Court rejecting the petition upheld the decision of the District and Sessions Court. Aggrieved by this, the Petitioner approached the Supreme Court under Article 32 of the Constitution and filed a Public Interest Litigation contending that the Appellate Courts do not have the power to pass a stay order on conviction and that the disqualification cannot be revoked even if a stay order to that effect is passed. The Supreme Court after a close scrutiny and consideration of the material facts and circumstances of the case, upheld the decision of the Allahabad High Court and opined that the petition of the petitioner is devoid of any merits and is to be hereby dismissed.
The case after a strict analysis makes a clear statement that provision of a statute has to be interpreted keeping in mind its scope and purpose. This case makes it clear that a stay order has wide repercussions and is generally to be granted in rare circumstances. To construe that a stay order by the Appellate Courts does not have the power of dilution of a previous conviction by the lower courts will be interfering with the statutory intent of Section 389 of the CrPC. On a concluding note, the case serves as a testament to the interpretative power of the Supreme Court and clears the ambiguity with regard to Section 389 of the CrPC.
Frequently Asked Questions (FAQs)
What was held in the case of B.R Kapoor vs. State of Tamil Nadu (2001)?
In the landmark case of B.R Kapoor vs. State of Tamil Nadu, it was held by the Hon’ble Supreme Court that under Section 389 of the CrPC (Section 430 of BNSS), the Appellate Courts have the power to order a stay on the execution of the sentence of the convict appellant till the matter is properly adjudicated upon.
What is the scope of Section 389 of the CrPC?
Section 389 of the CrPC (Section 430 of BNSS) provides powers of suspension and stay to the Appellate Courts in case of conviction of the convict appellant. The impugned case revolves primarily around this provision of CrPC and clears certain ambiguities with regard to its scope and ambit. The bench in the impugned case holds that u/s 389 of CrPC, the Appellate Courts have the power to order stay on execution as well as on the conviction of the convict appellant.
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This article has been written by Nimisha Dublish. The article is an in-depth analysis of the case of M. Nagraj vs. Union of India and how it played a significant role in determining the status of reservation policies in promotions in public employment. The article deals with the brief summary, facts, issues raised, arguments of the parties and the judgement of the Nagraj case. The author has made an effort to critically analyse the judgement and has also discussed the aftermath of the judgement.
Table of Contents
Introduction
In India, the topic of reservations has always been a sensitive one. It’s a topic that attracts a lot of explosive debates as well. The Constitution has enabling provisions to create reservations for disadvantaged groups. One group argues that it has faced numerous hardships since time immemorial and deserves certain relief as compensation for that. On the other hand, another group claims that India is a secular and democratic country, and its Constitution suggests that everyone is equal. They call it discrimination if any particular group enjoys any additional benefits. But the same Constitution also lays down provisions for reserving seats in different areas of life, such as education, government jobs, judiciary, etc. Hence, for a layman, this is a conflicting situation. Reservation Policy is a method to address issues that have been there since time immemorial, like the years of oppression on the basis of caste. Reservations were made to give a chance to the backward classes of society who have been suppressed and have faced historical injustices as well. Irrespective of the person’s social, educational and economic status, the current reservation system places them on a superior level. Only the caste of a person is seen to determine a person’s status under the Scheduled Castes (SCs) and Scheduled Tribes (STs) category. These reservations are based on the caste system alone and currently have nothing to do with their economic status in society.
The Hon’ble Supreme Court of India has, through various judgments, given its opinion on this matter. These decisions reflect the behaviour of the judiciary in such matters. One such important decision, which has been a landmark in the field of reservation, is the case of M. Nagaraj vs. Union of India (2006), where the idea of reservation in promotion in government departments was challenged on the basis of the policies on which it was based, claiming such policies to be discriminatory and illegal in nature. The Madhya Pradesh Government provided reservation and promotion to the Scheduled Castes and Scheduled Tribes in the public department. The decision was criticised for being an ultra-vires action and breaching the law of equality and provisions laid down in the Nagaraj case.
The case lays emphasis on the amendment provision given under Article 368 of the Constitution of India. It is said that the unamendable Constitution is the worst tyranny of all time. The Constitution of India states the general principles and framework of the law. So to maintain the rigidity and flexibility of the arrangement, the framers drafted Article 368 of the Constitution of India.
When India was under British rule, society was divided based on caste, religion and ethnicity. The Britishers utilised the existing division to take over control and govern Indian communities to their benefit. Many groups were treated unfairly because of the existing division in society.
In the 19th and early 20th centuries, social reform movements took place, challenging caste-based discrimination. Leaders like Raja Ram Mohan Roy, Jyotirao Phule, and Dr. BR Ambedkar played a crucial role in the upliftment of lower caste communities.
Post-independence era (after 1947)
Reservation was primarily based on caste, with Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). The scope was further expanded to include women, Economically Weaker Sections (EWS), and Persons with Disabilities (PWDs). The Mandal Commission (1979) was also established to assess the status of these socially and educationally backward groups. They were also required to draft measures and recommendations for the upliftment of these groups. It was upon the Mandal Commission’s recommendation that OBCs be given reservations in government jobs and in educational institutes as well, through the Mandal Commission Report 1990. The system of reservation has been subject to many legal challenges and debates.
Constitutional aspect
The Constitution framers were of the view that there was a need to address the historical injustice faced by minority communities. They wanted to promote social equality. Articles 15 (4) and 16(4) provide for reservation in educational institutes and public employment for socially and economically backward classes, including Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). The legislative intent behind including the provisions for the reservation of backward classes was to protect their interests. This was because when the Constitution was in the process of being made, these backward classes were also economically backward. They also faced oppression from society due to the caste they were born with. Hence, the framers included the provisions for reservation in the course of employment for them in order to bring them at par with others.
Recent development
In recent years, there have been several discussions on the efficiency of the reservation system and a need has been felt to review and revise the reservation policy. The government has revised the percentage of reservations under different categories and has introduced new quotas as well, such as the EWS quota in 2019, which provides 10% reservation to economically weaker sections of the general category. Critics hold different views regarding on what basis reservations shall be given. Also, some believe that reservation policies require major changes because, in today’s time, the judgment criteria must shift from caste to the economic status of a person. However, the reservation system is still a topic of intense political debate.
Brief summary of Nagaraj case
In the case of M. Nagraj vs. Union of India, the Supreme Court of India deliberated on the constitutional validity of the amendments to Article 16 of the Constitution of India. The main focus was on Articles 16(4A) and 16(4B). These amendments were issued by the various amendment Acts. This allowed reservations in promotions with consequential seniority for Scheduled Castes (SCs) and Scheduled Tribes (STs). The petitioners argued that the amendments violated the basic structure of the Constitution of India, particularly the principles of equality and non-discrimination as enshrined in Article 14 of the Constitution of India. It was contended that the Parliament exceeded its amending power by changing the fundamental principle under Article 16(4) of the Constitution of India.
In response, the respondents, who represented the government, defended the amendments and contended that they were a necessary measure to address the historical injustice towards the backward classes of Scheduled Tribes (STs) and Scheduled Castes (SCs). It was to be done to ensure that there is an equitable representation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in higher positions in public employment. The amendments so made were in line with constitutional principles and both the efficiency of administration and socio-economic conditions of disadvantaged groups were considered under Article 335.
However, the Supreme Court upheld the Constitutional validity of Articles 16(4A) and 16(4B) of the Constitution of India. It reaffirmed the Parliament’s authority to amend while taking into consideration that the amendments would not be against the basic structure of the Constitution of India. The court clarified that reservations about the promotions must be supported by quantifiable data, including the backwardness and inadequate representation in society. Hence, measures must be taken to ensure that the intended purpose is served without compromising the administrative efficiency or the rights of other candidates who belong to other categories, like the general category.
Facts of M. Nagraj & Ors. vs. Union of India & Ors. (2006)
To place this in context, it should be remembered that, in the Indra Sawhney case, it had been held by the Supreme Court of India that Article 16(4), because it then stood, was not wide enough to bring inside the reservation in matters of promotion. However, the Court declared that this might not have an effect on promotions that had already been created and, in fact, granted the extra protection that wherever reservations have already been provided for in Central or State Services, a similar position might continue for an additional amount of five years. After that, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, which did offer reservations in promotions. To recapitulate, this provision presently reads:
“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
The petition asserts that by this amendment, the legislature has exercised beyond its powers and thereby violated the basic structure of the Constitution of India. The amendment fundamentally altered the right to equality, which is an essential part of the Constitution of India.
Issues of the case
Whether the action taken in pursuance thereof seeks to reverse decisions of the Supreme Court in matters relating to promotion and their application with retrospective effect or not.
What is the validity, interpretation and implementation of the following amendments-
The Constitution (Seventy-seventh Amendment) Act, 1995
The Constitution (Eighty-fifth Amendment) Act, 2001
Contentions from both parties in the case
Petitioners’ contentions
The petitioners contended that equality is a part of the basic structure of the Constitution of India as provided in Article 14. The principle of equity and fairness is one of its central and essential components and it is almost impossible to interpret the provisions of the Constitution without that. It was further contended that Article 16 should be read in accordance with Article 14. This is because Article 16 is also essential to equality.
The petitioners further contended that Article 16 of the Constitution of India provides a safeguard towards employment equity and places a great value on public sector employment. They also argued that, if we tilt the balance more towards favouring the groups over individuals, it could lead to discriminating against individuals in reverse. When it comes to repealing the provisions of the Constitution, the Parliament should not have the ability to rewrite the Constitution of India completely. We must understand the contrast between the quota limit and the maximum thresholds permitted for reservation. It is urged in numerous judgments that the equality of opportunity in public employment be clarified in order to structure and balance Articles 16(1) and 16(4), more particularly in the judgments of Indra Sawhney, M.G. Badaappanavar, and Ajit Singh (II).
It was urged by the petitioners to read Articles 14 and 16 in relation to Article 335 of the Constitution of India. It was further emphasised by the petitioners that the revisions violate dual ideals of efficiency, merit and public service morale, along with good governance.
It was further contended by the petitioners that, over the years, the Court has delivered various decisions laying down that principles of equality and affirmative action are pillars of our Indian Constitution. The petitioners urge that equality in employment encompasses various aspects. These include equality of opportunity [Article 16(1)], anti-discrimination [Article 16(2)], special classification [Article 16(3)], affirmative action [Article 16(4)], and efficiency [Article 335]. It was pointed out that affirmative action, as provided in Article 16(4), should be seen as a classification within the framework of equality. It should not be seen as a dilution of it. The individual right to equal opportunity should not be overridden by these classifications or affirmative action. The petitioners further argue on the point that Article 16(1) ensures that the individual right to equality of opportunity is given, whereas Article 16(4) ensures that group expectations are met through affirmative action but does not confer any fundamental right. However, excessive emphasis on group expectations over individual rights might lead to reverse discrimination.
Petitioners relied on the case of Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) for proving that the limited power of amendment cannot become an unlimited one. It is one of the basic features of the Constitution of India and the limits imposed on its power cannot be destroyed. If the scope of an amendment abrogates the basic structure of the Constitution, then such an amendment must fail.
Respondent’s contentions
The respondent contended that the authority of amendment is a constituent power rather than a constituted power. The Constitution of India grants the legislature the authority to amend it under Article 368 of the Constitution of India. Constituent power of amendment is considered to be more flexible and sovereign, whereas constituted powers are subject to the constraints and procedures outlined within the Constitution of India. While the authority to amend the Constitution is expansive in nature, it is not absolute. Hence, it must be exercised with due regard for the Constitution’s underlying principles. The law has to change in order to become dynamic. The amendments are to be made as and when the time and society require it. It is the judiciary that holds the final say in the validity of those amendments made in law by exercising constituent power. It was examined by the judiciary whether the amendment violates the basic structure of the Constitution of India or not. There exists no implied limitation on the power of the Parliament given under Article 368 while making amendments to the law. However, the amendment shall be invalid if it disturbs the basic structure of the Constitution of India.
It was further contended that the principle of equity given under Articles 14 and 16 should not be mixed with the equality that is a fundamental component of the Constitution of India. They further contended that basic structure is not given in any particular Article, except the fundamental right to live under Article 21 read with Article 14 of the Constitution of India; no other Article in Part III of the Constitution of India is a basic feature. Rather, it is the concepts that flow from the Preamble to the Constitution like a thread that form the basic structure. It was submitted by the respondents that the principle of balancing the rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution of India.
It was further contended that the public services domain, especially the right to consideration for promotion in services, is not a basic feature of the Constitution of India.
It was submitted by the respondents that Articles 16(4A) and 16(4B) of the Constitution of India are mere enabling provisions. Also, the constitutionality of these enabling provisions, as mentioned herein, is not to be tested with reference to how such power is exercised. Also, the impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact. It was further argued by the respondents that the modifications in question retained the reservations at the recruitment level, thereby seemingly contravening the principles established in the Indra Sawhney ruling. The judgment of Indra Sawhney has confined Article 16(4) of the Constitution of India to only initial appointments. It is Article 16(4A) of the Constitution of India that provides for a special provision for reservation in promotion only for the Scheduled Castes (SCs) and Scheduled Tribes (STs). It was urged that if SCs, STs and OBCs are clubbed together, then in that case, the Other Backward Classes (OBCs) will take away all the vacancies. It is for this reason that Article 16(4A) has been inserted as a special provision in the Constitution of India. In this case, the focus was on the OBCs and not on SCs or STs. It was for this reason that there was no balance of rights between the general category, OBCs and SCs/STs. It was further contended that the extent of reservation was not to the cap of 50%; it was only limited to Scheduled Castes (SCs) and Scheduled Tribes (STs). This reduces the risk pointed out in the Indra Sawhney case.
The argument further extends to suggest that, if it is legally permissible to implement reservations at higher levels through direct recruitment, then similar provisions can also be extended to promotions in consonance with Article 335 of the Constitution of India. The Court has already taken care of the general category’s interest by limiting the vacancy filling to a maximum of 50% for reservation. The argument further says that Article 16(4B) makes an amendment to the 50% limit fixed by the Indra Sawhney case. It says that the vacancies of the previous year won’t be considered with the vacancies of the current year. Article 16(4B) applies to Article 16(4) and if the reservations are found to be reasonable, then the court would uphold such reservations. Therefore, the enabling power under Article 16(4B) cannot be held invalid.
Provisions of the Constitution of India involved in M. Nagraj vs. Union of India (2006)
Article 14 of the Constitution of India
Article 14 of the Constitution of India guarantees two fundamental principles, i.e., equality before the law and equal protection of the law. Equality before the law mandates that every individual, irrespective of their background or status, is subject to the same laws and treatment. It ensures that no one is above the law and that everyone is treated equally in the eyes of the law. This prohibits the arbitrary and discriminatory behaviour of the State and ensures that justice is delivered impartially. The second fundamental principle of equal protection of the laws requires the State to apply laws in uniformity to individuals falling under the same or similar circumstances. This ensures that similar situations are treated equally and that there is no discrimination on any basis whatsoever. The State cannot favour one individual or group of individuals over another without a valid rationale.
The essence of Article 14 of the Constitution of India lies in its guarantee of equality. This means that the State cannot discriminate on the basis of religion, caste, race, sex, place of birth, or any other such factor. The principle ensures that individuals, regardless of their background, shall be treated equally by the law.
Article 16(4A) and 16(4B) of the Constitution of India
Article 16(4A) of the Constitution of India provides for a specific exception to the general rule of equality of opportunity in the case of public employment. It allows the State to make certain provisions for the reservation of individuals or groups of individuals in the matter of promotion, along with consequential seniority, in favour of Scheduled Castes (SCs) and Scheduled Tribes (STs). The reservations shall be made only if the State believes that these groups are not represented properly in the service of employment.
Article 16 of the Constitution of India aims to acknowledge the historical discrimination and social disadvantages that were faced by Scheduled Castes (SCs) and Scheduled Tribes (STs). The provision provides for a solution for those individuals who are under-represented in government services. However, Article 16(4A) of the Constitution of India does not give an unfettered right to the State to provide reservations in promotions. The right is subject to the condition that Scheduled Castes (SCs) and Scheduled Tribes (STs) are not adequately represented in the concerned services.
Article 16(4B) of the Constitution of India provides the State with the flexibility to deal with vacancies that are not filled and are reserved for a particular year due to the operation of reservation policies under Article 16(4) or Article 16(4A) of the Constitution of India. This provision allows the State to treat these unfilled vacancies as a separate class of vacancy that is to be filled in subsequent years without being counted towards the total vacancies of the year in which they were originally reserved. This allows the State to implement the policies effectively. This Article of the Constitution of India enables the State to carry forward these unfilled reserved vacancies as a separate category. The provision makes sure that these vacancies are not lost or merged with the current vacancies of the year in which they were originally reserved.
“[The State can] make any arrangement for reservation in issues of advancement to any class or classes of posts for the Scheduled Castes or Scheduled Tribes.”
The amendment says that the State has the power to make reservations for the Scheduled Castes and Scheduled Tribes for advancement to any posts.
“[The State may consider] any unfilled opportunities of a year which are saved for being topped off in that year as a different class of opening to be topped off in any succeeding year or years and such class of opening will not be viewed as together with the opening of the year in which they are being topped off for deciding the roof of 50% reservation on complete number of opportunities of that year.”
The amendment allows the State to treat the unfilled vacancies as a separate class of vacancy that is to be filled in subsequent years without being counted towards the total vacancies of the year in which they were originally reserved.
85th Amendment Act 2001
Through the Constitution (Eighty-fifth Amendment) Act, 2001, Article 16 of the Constitution of India has been amended. The wording in Article 16(4A) saying “in issues of advancement to any class” has been substituted with “in issues of advancement, with consequential seniority, to any class.”
Article 335 of the Constitution of India
Article 335 of the Constitution of India addresses the reservation policy for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs. The reservation policy aims to address the historical discrimination faced by SCs and STs since time immemorial. Over the years, various laws and policies have been established, deriving their origin from Article 335 of the Constitution of India. The Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, lay down the communities that are recognised as SCs and STs, respectively. These lists are updated periodically based on socio-economic considerations.
82nd Amendment Act 2000
Through the Constitution (Eighty-second Amendment) Act, 2000, Article 335 of the Constitution of India was amended. A proviso was added to Article 335 of the Constitution of India. The proviso states as follows-
“Nothing in this Article will avoid the creation of any arrangement in favor of the individuals from the Scheduled Castes and the Scheduled Tribes for unwinding in qualifying marks in any examination or bringing down the standards of assessment, for reservation in issues of advancement to any class or classes of administrations or posts.”
The proviso was added to Article 335 in order to provide relaxation in qualifying marks for reservation in matters of promotion of Scheduled Castes and Scheduled Tribes.
Article 368 of the Constitution of India
Article 368 of the Constitution of India outlines the procedure for amending the Constitution. The power is vested with the parliamentary authorities to amend various provisions of the Constitution, including fundamental rights, Directive Principles of State Policies (DPSPs), etc. However, this power is not an absolute one. It comes with certain limitations. The constraint is the doctrine of the basic structure. It acts as a safeguard against arbitrary changes that could undermine the basic principles of the Constitution of India.
Relationship between constitutional form and constitutional principle
The relationship between the constitutional form and constitutional principle is given in the Constitution of India in the form of “basic structure doctrine” and fundamental rights enshrined in Part III. The “Basic Structure Doctrine” pertains to the constitutional form and the fundamental rights pertain to constitutional principles. To ensure the well-being of the citizens of India, these principles highlight the significance of fundamental rights such as freedom of religion, equality before the law, protection of life and personal liberty.
These principles question whether the fundamental rights constitute the basic structure of the Constitution or not. However, these constitutional principles form the backbone of the constitutional form. These principles are reflected throughout the Constitution of India in various provisions and they tend to define the identity and character of the Constitution of India.
There may be different interpretations of realising these principles, however, it is upon the State’s ambit to determine the most effective means to achieve them. It is the duty of the State to ensure that it upholds the fundamental principles of justice and equality, that are intrinsic to the constitutional form. The table below provides a comparison between these two concepts.
S. No.
Constitutional form
Constitutional principle
1
It refers to the structure and framework of the Constitution.
It refers to fundamental values and guiding doctrines of the Constitution.
2
It includes institutional design, division of powers, and procedural mechanisms.
It shapes the interpretation and application of the Constitution.
3
For exampleSeparation of powersFederalismParliamentary democracyJudicial review
For exampleJusticeEqualityRule of lawFundamental rights
4
It provides a framework within which governance operates and institutions function.
It serves as a moral and ethical foundation of the Constitution that makes sure that laws and policies align with the set core values.
Judgment in the case
The Bench held that the amended provisions of Article 16(4A) and Article 16(4B) of the Constitution of India make no changes to the framework of Article 16(4) of the Constitution of India. It was further held that Article 335 of the Constitution of India highlights the importance of preserving certain criteria, such as backwardness and insufficiency of representation, and that the overall administration is not affected while implementing reservation policies. These criteria ensure that reservations are given to economically and socially disadvantaged groups. The reservations are made while keeping in mind the efficiency of government administration. The amendments that are challenged in this case are only applicable to the Scheduled Castes (SCs) and Scheduled Tribes (STs).
There are three crucial elements, i.e., the 50% reservation threshold, the creamy layer and the necessity of a reasonable justification. These prerequisites are important to ensure that the system of equal opportunity is being given to people in need. Firstly, the 50% threshold sets a limit on the total percentage of reserved seats in government jobs. This helps in balancing the interests of both reserved and general category candidates. This ensures that the candidates are given an equal opportunity and that the deserving candidate gets a fair chance to contest. Secondly, the creamy layer concept aims to prevent the benefits of reservation from being availed by those individuals who fall well within the criteria of the reserved category. This ensures that the reservation benefits are given to only those people who truly need upliftment. Thirdly, before making provisions for reservations, the concerned state authorities must look into the existing factors of backwardness, lack of participation and overall administration in each case. This ensures that reservation policies are made on the basis of genuine gaps in the socio-economic status of individuals. These provisions act as a safeguard to uphold the integrity of the reservation system in India.
The Hon’ble Bench further explained that the clauses that are challenged are just enabling clauses/provision and the government is not required to impose reservations for Scheduled Castes (SCs) or Scheduled Tribes (STs) in the promotion. The State must collect quantitative facts that clarify and portray the existence of a certain sort of backwardness and insufficiency of representation in public employment. This shall be done in order to establish the provision for reservations in promotions. The State, while doing so, must also comply with Article 335 of the Constitution of India.
It was pointed out that even if the State has valid reasons for implementing the reservation policies, it must ensure that the policies do not go overboard. This means that the reservation laws should not become excessive, eventually leading to the exclusion of serving candidates from the creamy layer. The Court also emphasised that the reservation benefits should not be extended indefinitely as it would hinder social mobility and perpetuate dependency amongst individuals. There shall be a balance maintained while making such reservation policies.
The State must mention in detail how the reservation in promotions will help and promote the backward classes without affecting the administrative efficiency of the government. The State shall submit a document outlining the reasons for the reservation in promotions and justifying the inadequacy of representation of the backward class in society.
As per the Hon’ble Bench, social justice is concerned with the allocation of advantages and obligations. The conflict between rights, needs and means serves as a basis for distribution. These requirements can be classified as formal equality or proportional equality. Equality here means that the law treats everyone equally.
The rationale behind this judgment
Standards of judicial review of constitutional amendments
The Constitution of India is not just a document containing rules and regulations for the passing hour. Rather, it sets out certain principles that bring in the scope of an expanding future and is drafted to endure for ages to come. Hence, there is a need for a purposive approach rather than a strictly literal approach to interpret the provisions of the Constitution that have more than just words to say. The provisions must be adapted in a wide and liberal manner. It must take into consideration the changing conditions. Each individual possesses some basic human rights independently of any constitution because of the simple fact that they are a part of the human race. The fundamental rights possessed by these individuals hold an intrinsic value. The fundamental rights are not conferred upon the people by Part III of the Constitution of India; rather, it just confirms their existence and protection. The purpose of this is to deviate certain topics from the political controversies. This is to be done to place them in a position where no majority or official can reach them and violate them and to regard them as legal principles that are to be applied by the courts. Every fundamental right holds a foundational value. A right is converted into a fundamental right because it holds that foundational value. The fundamental right acts as a limitation to the power of the State.
In the case of Sakal Papers (P) Ltd. vs. Union of India (1961), the Court held that the courts must not be too rigid to interpret the language in the literal sense. The Constitution should be interpreted in a manner that would enable individuals to enjoy their guaranteed rights to the fullest. Back in 1950, the Supreme Court gave a narrow and literal interpretation in the case of A.K. Gopalan vs. State of Madras (1950). As per Article 21 of the Constitution of India, no individual should be deprived of his life and personal liberty except by procedures established by law. Herein, the Supreme Court refused to incorporate the principles of natural justice. By a majority, the Court held that the procedure established by law means the procedure established by Parliament or the legislature of the State. After a period of three decades, it was overruled by the landmark judgment of Maneka Gandhi vs. Union of India (1978). It was held, in this case, that the procedure given by Article 21 of the Constitution of India must answer the test of reasonableness. The procedure must be in conformity with the principles of natural justice. The right to live is not only restricted to mere physical or animal existence but also to living the human life with dignity. The Court has made certain observations that certain fundamental features are implicit in the Articles. For example, freedom of information falls under freedom of expression. The Court took a liberal approach in interpreting the right to know and the right to access information under the right to free speech and expression guaranteed under Article 19(1)(a).
It is important to understand that the final word on the content of a right is of the Court. There have been several debates on the nature of constitutional adjudication. On one hand, it is argued that the judicial review of legislation should be literal and to its original intent. Whereas, on the other hand, there are a variety of standards and values permitted in cases where the constitutional text is indeterminate in nature. The question that stands relevant for the Court is to determine the standards of determination that need to be applied in judging the validity of constitutional amendments with reference to basic structure doctrine. The concept of basic structure grants certain durability to the Constitution by giving it an intrinsic value. The doctrine has been taken from the German Constitution.
In S.R. Bommai and Ors. vs. Union of India and Ors. (1994), the Court held that the policies of a State Government against the element of the basic structure of the Constitution would be valid grounds for the exercise of central power under Article 356 of the Constitution of India, i.e., the imposition of the President’s rule. It was also declared that secularism is an essential feature of the Constitution of India and forms a part of the basic structure as well. The Court further held that the State Government’s acts can be dismissed if they act against the basic principles of enacting provisions.
The point that the Supreme Court is trying to make is that the principles of federalism, secularism, reasonableness, socialism, etc are beyond the words of a particular provision. These principles give coherence to the Constitution of a nation. They are a part of the Constitutional law, even if they are not stated explicitly. In order to make the constitutional principles eligible for being considered as basic features of the Constitution, it must be established that they are a part of Constitutional law that is binding on the legislature. Then, it is essential to determine whether the principle forms part of the basic structure of doctrine. Therefore, if a principle needs to qualify as a basic feature, it first has to be established as a part of the constitutional law. Only after this can it be further scrutinised whether it is fundamental enough to bind even the amending power of the Parliament. The basic structure doctrine has been taken from the German Constitution. It can be seen from various similar provisions under both the Constitutions relating to freedom of the press or religion. These are not only just values but are capable of interpretation. There is a positive duty imposed on a State to not only protect the rights, liberty and freedoms of an individual but also to facilitate these as well. Certain axioms, like secularism, democracy, reasonableness, etc., are principles that provide a link to Articles 14, 19 and 21. However, these are beyond the amending power of Parliament. Human dignity must be protected by the State. Though there is no such definition of human dignity defined by law, it commonly refers to the intrinsic value of human beings, which must always be respected. This is the reason why German courts see human dignity as a fundamental principle and this is how the basic structure doctrine has evolved itself under the German Constitution.
Under the Indian Constitution, federalism is not mentioned in the preamble. However, its principle is delineated over various provisions of the Constitution of India. The concept finds its origin in the separation of powers under Articles 245 and 246 read with the three lists in Schedule VII of the Constitution of India. The Court relied on the doctrine of constitutional identity as explained in the case of Kesavananda Bharati Sripadagalvaru vs. State of Kerala (1973). In this case, it was observed that no one can legally use the Constitution to destroy itself. It was observed by the Court that the personality of the Constitution must remain unchanged. This is the reason why the Court relied on the doctrine of constitutional identity while giving the judgment. The old legislation that has been altered or amended stands to exist even though it has been subject to alterations. To destroy the identity would mean to abrogate the basic structure of the Constitution. The Court concluded with the then Chief Justice of India, Y.V. Chandrachud’s statement in the Minerva Mills Ltd. case that “the Constitution is a precious heritage and, therefore, you cannot destroy its identity.”
Is equality a fundamental feature or part of the basic structure of the Constitution of India
Equality, judicial review, rule of law and separation of powers are intimately connected with each other, but they are separate from each other and must be treated separately. There cannot be any one of them without the other. For example, there would be no rule of law without equality before the law.
In the case of Minerva Mills, it was observed that Articles 14 and 19 of the Constitution of India do not amount to any fanciful rights. The rights that are conferred are elementary for the proper functioning of a democracy. The Universal Declaration of Human Rights (UDHR) has regarded these rights universally. The majority in this case said that the principles given in Part IV of the Indian Constitution are common to all polities, whether democratic or authoritarian economies. Without these freedoms, democracy is impossible to sustain. Hence, equality is the essence of democracy and a basic feature of the Constitution. As held in Indira Nehru Gandhi vs. Raj Narain (1975), free and fair elections are a part of representative democracy. The principle that comes out of all the observations is that of equality. It is the essence of democracy and, hence, a basic feature of the Constitution of India. However, free and fair elections might not contribute to the basic features but they are an essential part of representative democracy. Just like equality and representative democracy, federalism is also an important part of constitutional law. Federalism is not mentioned in the preamble. The essence of federalism can be seen in various provisions, like Articles 245, 246 and 301, and three lists of the Seventh Schedule of the Constitution of India.
The Supreme Court was of the view that the theory of basic structure is the only theory by which the validity of the impugned amendments to the Constitution can be judged. The theory says that it is based on the principle that a change in a thing does not involve its destruction or that the destruction of a thing is a matter of substance and not of form. Therefore, the principle of overarching must be applied to gather information from the scheme, placement and structure of an Article in the Constitution of India. For example, the inclusion of Articles 14, 19 and 32 in equality, freedom and access to the Supreme Court, respectively.
Concepts of justice, social, economic and political, are also provided in Part III of the Constitution of India
The rights conferred upon citizens and non-citizens are not merely individual or personal rights. These rights have a huge impact on society at large and also on political content. This is because the objectives of the Constitution cannot be realised without them. Article 38 in Part IV of the Constitution of India is the only provision that talks about justice, social, economic and political. However, justice is not only limited to these DPSPs. There can be no justice without equality. Article 17 of the Constitution of India abolishes untouchability by promoting equality. Article 25 of the Constitution of India allows the States to open public temples for untouchables. Therefore, it can be seen that Part III also provides for political and social justice.
In the present case, the concern is that the right of an individual to equal opportunity is on the one hand and preferential treatment on the other. There are conflicting claims in the present case within the concepts of justice, social, economic and political. Public employment is a scarce commodity and demand is chasing that commodity. The concept of equality of opportunity concerns an individual, whether he belongs to a general category or any other backward class. The issue has to be optimised for these conflicting interests and claims.
The above discussions are important for the present case because herein we are concerned with the reservation policy. Balancing fundamental rights, as done in the cases of Kesavananda Bharati and Minerva Mills, cannot be equated with the facts of the present case.
Concepts of equity, justice and merit, and reservation and its extent
There are three independent variables that play crucial roles in public employment, i.e., equity, justice and merit. Their application depends on the quantifiable data present in each case. There exists a contrast between equality in law and equality in fact. Article 16(4) is equality, in fact. The general class looks for equity, the backward class looks for justice and it is the third variable that is the most difficult to decide, i.e., efficiency in service. These principles are hard to understand when compared to each other. This is the reason why the State shall see it on a case-to-case basis. The Court has observed that certain restrictions on the power of the State under Article 16(4) are to be read with Article 335 of the Constitution of India.
Equality has two aspects. There is a conceptual distinction between a non-discrimination principle and affirmative action. Both concepts constitute equality of opportunity. If the quota of reservation goes beyond the cut-off point, then it results in reverse discrimination. The surest immunity against charges of discrimination is the numerical benchmark. The provision of reservation should be used in a limited sense; otherwise, it will lead to casteism in the country. The backwardness shall be based on objective factors. However, inadequacy also exists factually. This is where judicial review plays its role. The Court cannot decide on the matter of reservation as long as the parameters of Articles 16(4) and 16(4A) are maintained.
The extent of reservation involves two questions. Firstly, whether there is any upper limit beyond which reservation is not permissible. Secondly, whether there is any limit to which seats can be reserved in a particular year.
In order to understand the extent of reservation, it is essential to know whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1) of the Constitution of India. The Court observed that, if Article 16(4) is an exception to Article 16(1), then it has to be seen with a limited scope. This shall be done to prevent it from eclipsing the general rule in Article 16(1). If both of these Articles are taken into consideration as part of each other, then they shall be harmonised keeping in mind the interests of certain sections of society.
Maximum limit of reservation possible
In the case of General Manager, Southern Railway vs. Rangachari Gajendragadkar (1961), the word of caution against excessive reservation was first pointed out. It was emphasised by the majority of judges that the reservation under Article 16(4) of the Constitution of India is merely for the adequate representation of backward communities. There has to be a reasonable balance between the claims of backward classes and the claims of other employees. However, the question of the extent of reservation was not addressed in this case. But the same was directly involved in M.R. Balaji vs. the State of Mysore (1962), where the question of the extent of reservation was addressed with reference to Article 15(4). The 60% reservations under Article 15(4) of the Constitution of India were struck down as excessive and unconstitutional. The special provision should be less than 50%. In State of Kerala vs. N.M. Thomas (1975), it was observed that, although reservation cannot be so excessive as to destroy the principle of equality of opportunity under Article 16(1), it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4).
It was further held in the case of Indra Sawhney that the rule of 50% as laid down in the case of Balaji was a binding rule and not merely a rule of prudence. Justice Reddy stated that Article 16(4) comprises adequate representation and not proportionate representation. However, the proportion of the population of backward classes to the total population of the nation would be certainly relevant. Emphasis was laid on balancing the rights given in Article 16(4) and Article 16(1). Both provisions shall be read in harmony because they are restatements of the principle of equality as given under Article 14 of the Constitution of India.
Can the reserved category contest a vacancy in the general category
It was noted in the case of Indra Sawhney that the reservations given under Article 16(4) of the Constitution of India do not work on a communal basis. The selection of a reserved category person in the general category would not be counted against the quota limit provided under his class. A similar view was taken by the Supreme Court in the case of R.K. Sabharwal vs. State of Punjab & Ors. (1995). It was noted that general candidates are not allowed to fill the vacancies of a reserved post but the reserved category is entitled to compete for the posts in the general category.
How many vacancies could be reserved
The catch-up rule is a practice of carrying forward the unfilled reserved vacancies from one year to the next in order to make sure that backward candidates eventually fill up the reserved positions over time. As per Article 16(4) of the Constitution of India, if in a particular year the number of qualified candidates from backward classes falls short, the government can adopt the catch-up rule. However, this has led to situations where more than 50% of the vacancies were reserved i.e., in excess of the constitutional principle.
In the Rangachari case,it was seen that the carry forward rule for reservation became obsolete and in conflict with itself. This was because the availability of reserved category candidates was less than the vacancies reserved for them. In such cases, the government had to adopt either of the two measures. First, the State may provide for carrying on unfulfilled vacancies for further years. Second, Instead of giving carried forward vacancies, it may fill up the vacancies from the general category and eventually carry forward the unfilled post by the reserved category to next year.
The main conflict arises when, by the way of carry forward rule, more than 50% of vacancies get reserved. In T. Devadasan vs Union of India (1963), the Union Public Services Commission (UPSC) provided for 17.5% reservation for SCs and STs. The unfilled vacancy was to be filled by general category candidates and the number of such vacancies was to be carried forward to next year. Due to this practice of carry-forwarding the reserved vacancies, the reservation amounted to 65% in a year. The petitioner contended that this violated their rights under Articles 14 and 16(1) of the Constitution of India. The Court, on the basis of the Balaji case, held such kinds of reservations unconstitutional because they were in excess of the required provision. It was held that, as per the provisions of Article 16(1) of the Constitution of India, the State shall see that citizens are to be treated equally in the case of recruitment to any office under the State.
In the Indra Sawhney case,the Court was of the view that the 50% rule should apply in order to save the opportunity under the Constitution for the general category. Article 16(4) and Article 16(1) of the Constitution of India should both be balanced and should not be allowed to eclipse each other. The entire cadre strength shall be considered in order to determine reservation in cases of promotions, as per the case of RK Sabharwal.
The concept of strength of cadre is the total number of positions or posts available for people in a particular department or service. To determine the proportion of reservations, it should be related to the total strength of the cadre. Justice Subba Rao, in his dissenting opinion in the case of Rangachari, emphasised that the State while implementing reservations, must focus on the strength of the entire cadre. As per him, the key factor is whether the reservation disproportionately fills up an important part of cadre strength or not. If it does not, then reservations shall be applied to ensure the backward classes get adequate representation.
Catch-up rule: a constitutional requirement under Article 16(4) of the Constitution of India
The petitioners were of the view that the 77th and 85th Amendments to the Constitution of India were so wide that they violated the basic structure of equality. The main issue arising out of the case was whether the catch-up rule and the concept of consequential seniority are part of the basic structure of the Constitution of India under Articles 14, 15 and 16.
In Union of India and Ors. vs. Virpal Singh Chauhan (1995), the catch-up rulewas addressed and discussed for the very first time. The rule of reservation was applied at every stage of promotion. Due to certain circumstances, the general candidates were promoted on an ad hoc basis and within a period of 3 months, they were reverted and both SCs and STs were promoted instead. The general candidates challenged this act of controller as being arbitrary and unconstitutional. The general candidates contended that the accelerated promotion may be granted to the reserved candidates but the railways cannot give the consequential seniority to the reserved category for promotions. The Court held that the rule of reservation does not violate Article 16(4) of the Constitution of India. The Court held that there cannot be a uniform method for reservations and this is for the State to decide based on the facts and requirements of each case. The Court stated that the catch-up rule cannot be said to be implicit in Articles 16(1) and 16(4) of the Constitution of India. The situation of having 11 vacancies with 33 candidates from the reserved category arose from the faulty application of the rule of reservation. The Court ordered such a faulty application of the rule to be rectified.
The Court, after referring to the above judgment and the case of Ajit Singh, was of the view that both the rules of catch-up rule and consequential seniority have evolved judicially and are in service of jurisprudence. These are based on practices and cannot be elevated to the status of constitutional principles. Both concepts are not implicit in Articles 16(1) and 16(4) of the Constitution of India, as held in the Virpal Singh Chauhan case.
Scope of impugned constitutional amendments
The Court primarily addressed the reservations in promotions and consequential seniority to address the carry-forward vacancies. The Court applied the width and identity test to determine whether these changes undermine the fundamental principles enshrined in Articles 14, 15 and 16 of the Constitution of India. The width test is related to the assessment of the scope or extent to which the power given by law is applicable. It checks whether the constitutional amendments that are made herein are permissible as per the Constitution of India. The test checks whether the reservations given under the impugned amendments obliterate the limitations of backwardness and inadequacy of representation. Whereas the identity test focuses on the specific function or exercise of power by the concerned State/authority. It checks whether the State has properly identified the circumstances that justify the reservation. However, this test can be done on a case-to-case basis based on the quantifiable data.
In the Indra Sawhney case,the concept of consequential seniority was not held to be inherent in constitutional principles like secularism and federalism. But it was derived from jurisprudential principles. Therefore, its incorporation does not violate the basic structure of the Constitution of India.
The legislative intent behind these amendments was to characterise them as enabling provisions that empower the State to implement reservations while conforming to the principles enshrined in the Constitution. As long as the parameters mentioned in Article 16(4) of the Constitution of India are complied with by the States, the provision of reservation cannot be faulted. Article 16(4A) and 16(4B) of the Constitution of India are further classifications within the principle of equality enshrined in Article 16(4) of the Constitution of India.
Application of the doctrine of guided power under Article 335 of the Constitution of India
After applying the tests to Article 335 of the Constitution of India introduced by the 82nd Amendment, it was found that the provision forms a nexus with Articles 16(4A) and 16(4B). Article 335 of the Constitution of India does not pose any restriction on the State from providing relaxation in the qualifying marks or standards of evaluation for reservation in promotion. The provision is only confined to the Scheduled Castes (SCs) and Scheduled Tribes (STs). A discretionary power is given to the State to relax the qualifying marks or the standards of evaluation. The issue was, hence, whether the State be given such powers or not. The Court was of the view that the introduction of the proviso to Article 335 of the Constitution of India does not obliterate its overall efficiency. The reason behind this is that efficiency is a variable factor. It is for the State to decide, as per the case and circumstances, whether the overall efficiency of the system is affected by such relaxation. If the relaxations are given in excess and ceases to be qualifying marks, then the State is not free to take such actions. The State shall not provide such relaxations. It may develop a system wherein efficiency, equity and justice could be accommodated. It is essential to read Article 335 with Article 46 of the Constitution of India. It says that the State shall promote the educational and economic interests of the people with due care. Scheduled Castes (SCs) and Scheduled Tribes (STs) must be protected from social injustice in society.
Hence, the State may relax the qualifying marks in the interest of Scheduled Castes (SCs) and Scheduled Tribes (STs) when it finds a compelling interest in backwardness and inadequacy. However, the compelling interest must be scrutinised by comparable data. The Court, hence, reiterated the fact that the main objective behind the impugned constitutional amendment was to confer a discretionary power on the State to make reservations for SCs/STs in promotions, subject to the circumstances and the constitutional limitations indicated above.
Impact of amendments on the framework established in Indra Sawhney case
In order to preserve equality, a balance was maintained in the case of Indra Sawhney. This was done to make sure that Articles 14, 15 and 16 of the Constitution of India remain intact and are not violated. Also, social upliftment as enshrined in the Constitution of India shall be achieved. The cadre strength was limited by the 50% ceiling limit and reservation was confined to the initial recruitment and not to the promotions. The petitioners relied on this case to highlight that equality is a basic feature of the Constitution of India. In this case, equality was protected by the 50% ceiling limit and the rights of the general category, Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs), were balanced. In the present case, the issue is whether the sub-classification in favour of SCs and STs is constitutionally valid or not. The division of OBS on one hand and SCs and STs on the other was held permissible. The reservations made for the sub-categories of Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) were held well within the framework of egalitarian equality. Therefore, it was opined that equality is a concept enshrined and retained in Article 16(4A), which flows from the main Article 16(4) of the Constitution of India.
Article 14 of the Constitution of India enables classification on the basis of intelligible differentia. There must be a rational relation with the object that is to be achieved by the law. Similarly, in the present situation, the classification shall be made on the basis of the differential between the current vacancies and carry-forward vacancies. The Court upheld the classifications given in Articles 16(4A) and 16(4B) of the Constitution of India. The constitutional amendments do not obliterate equality.
The Court mentioned the concept of social justice. It is related to the distribution of benefits and burdens. Under this comes the concept of formal equality and proportional equality, which cover the three criteria of rights, needs and means. Formal equality means that the law treats everyone equally and proportional equality is based on egalitarian equality. The Court has long taken the view that caste should not be a determinant of backwardness. Instead, only economic criteria should be the factor determining the backwardness. The Court was bound by the decision of the Indra Sawhney case. The Court has evolved the numerical benchmark of 50% along with the concept of replacement to provide immunity against the charge of discrimination.
Critical analysis of M. Nagraj vs. Union of India (2006)
It can now be clearly seen that the impugned constitutional amendments, i.e., with respect to Articles 16(4A) and 16(4B), flow from Article 16(4) itself, as held by the Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. (2006). The said amendments do not alter the basic structure of the Constitution of India. The provisions are only concentrated on benefits for the Scheduled Castes and Scheduled Tribes by way of providing reservations. They do not mandate the provisions of a ceiling limit of 50%, the concept of creamy layer and sub-classification of OBC, SCs and STs, as held in the case of Indra Sawhney, or the post-based roster with the in-built concept of replacement, as held in RK Sabharwal. The five-judge Bench of the Supreme Court unanimously upheld the impugned constitutional amendments, i.e., the 77th, 81st, 82nd and 88th Constitutional Amendment Acts. These constitutional amendments retain the controlling factors of backwardness and inadequacy of representation that enable a State to give reservations while keeping in mind the overall efficiency of the State administration provided under Article 335 of the Constitution of India.
All these mentioned concepts are constitutional requirements without which the structure of equality of opportunity under Article 16 of the Constitution of India would collapse. The main issue that arose in this case was the extent of the reservation. To determine the extent of reservation, it is upon the State to determine the reservation criteria as per the facts and circumstances in a case. The factors on which the reservation would rely are the existence of compelling reasons like backwardness, the inadequacy of representation and overall administrative efficiency. The State is not under the obligation to make reservations for SCs and STs in cases of promotions. It is their discretion and they have to provide quantifiable data to showcase the existence of such backwardness and inadequacy of representation in public employment in compliance with Article 335 of the Constitution of India. Even if the State has its reasons for reservations, it shall also see that these reservations do not breach the ceiling limit.
It was because of all the above-mentioned reasons that the 77th, 81st, 82nd and 85th Constitutional Amendment Acts were held to be valid. These are not beyond the amending power of Parliament. In order to apply the basic structure doctrine, the twin tests of width and identity must be satisfied. The Court held that neither of the tests were violated and, hence, there is no violation of the basic structure of the Constitution of India.
As per Article 16(4), the Government is free to give reservations to the candidates if they are satisfied on the basis of quantifiable data. This data must indicate that these backward classes are inadequately represented in the service. It is for these reasons that whenever the State decides to provide reservation, there must be two circumstances, i.e., backwardness and inadequacy of representation. Also, these limitations have not been removed by the impugned amendments. It is only when the State fails to apply the twin tests that the reservations become invalid. Otherwise, these amendments do not violate the structure of Articles 14, 15 and 16.
The Supreme Court herein in this case gave its decision, upholding the Parliament’s action to broaden the reservation for SCs and STs to also include the promotional aspect. This marked a significant change in the development of the weaker section of society and the laws made provided reservation in promotions, which helped to encourage individuals from backward classes like SCs and STs to participate more efficiently.
A close reading of the Supreme Court’s verdict in the Nagaraj case reveals the fact that the Court used the expression “creamy layer” while interpreting Articles 16(4), 16(4A) and 16(4B) and in the process of specifying limitations on the amending power of Parliament regarding social reservations.
Aftermath development in the case
Facts of the case
In this case, the petitioner challenged the Nagraj judgment. After the case’s decision in 2006, various states and the centre were challenging it. In this case, the petitioner was of the view that the Nagraj Case has made it difficult to provide reservations in promotion for government jobs and public services. The case was further referred to a seven-judge bench of the Supreme Court.
There were certain observations that were made in the case. Those were that Article 16(4) grants the power to the State to make reservations in appointments and posts in backward classes but the same is not applicable to promotions. Article 16(4A) was introduced with the aim that nothing in the mentioned article would prevent the State from taking the decision to make reservations in the matter of promotions. The said clause was added through the 81st Constitutional Amendment. The fact that the State was required to collect quantifiable data and the concept of the creamy layer mentioned in the Nagraj case raised questions on equality, hence the petition was filed to review the Nagraj case.
Issues involved
Whether there was a requirement to re-assess the Nagraj judgment by a seven-judge bench?
Whether the State is required to collect quantifiable data in order to prove the existence of backwardness and inadequacy of class while being promoted?
Whether the creamy layer in the SCs and STs should be barred from getting promotions through reservations?
Judgment
The Court held that there is no requirement to refer the Nagraj case to a seven-judge bench. Also, the issue of whether the State has to collect quantifiable data to show the backwardness and inadequacy of SCs and STs is contrary to the nine-judge bench decision of the Indra Sawhney case, making it invalid. It was clearly held in the Indra Sawhney case that any discussions on the concept of the creamy layer have no relevance with reference to the SCs and STs. The Supreme Court further held that the application of the creamy layer to the promotions for SCs and STs as held in Nagraj is fair. The Court saw the principle of the creamy layer as a principle of identification and not of equality.
Conclusion
Reservation is a hot topic in any democracy. Though the laws have been laid down in this regard, the procedural requirements and workability of the provisions must be carefully scrutinised before awarding reservations. The grounds, like inadequacy in representation and backwardness, are to be carefully examined. Due to the inadequacy of representation, the text of Article 16 clearly states that it is a matter of the State to determine to what extent a reservation can be given. While it must base its determination on some materials, the importance is given to the empirical evidence that is required. The proper studies must be conducted by the State to determine the correct number of candidates who need reservations.
There is a legal framework to govern and regulate reservations but it is more important to check the procedural aspects and the practical feasibility of the provisions before actually implementing them. The grounds must be rigorously evaluated before coming to a decision. The evaluation demands a deep understanding of the socio-economic disparities that coexist in society. The critics argue that reservations made solely on the basis of caste lead to certain stereotypes and fail to address the disadvantages that one faces due to belonging to a backward class. Therefore, factors beyond the caste shall also be taken into consideration, such as gender, disability, economic status and any other relevant criteria as per the situation.
While these reservations are crucial for addressing historical injustices, a balanced approach must be taken to protect the interests of those who do not belong to any such reserved category. This is important to ensure the effectiveness and fairness of reservation policies in a society.
Frequently Asked Questions (FAQs)
What was the M. Nagraj vs. Union of India case all about?
The case primarily challenged the constitutionality of the reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs.
What are the key provisions of Article 16 of the Constitution of India?
Article 16 of the Constitution of India provides for equality of opportunity in the matter of public employment and allows reservations in favour of certain categories, like Scheduled Castes, Scheduled Tribes and Other Backward Classes.
What is the significance of Article 335 of the Constitution of India in the context of reservations?
Article 335 of the Constitution of India aims at preserving certain criteria, such as backwardness and insufficiency of representation. At the same time, it implements reservation policies to ensure the efficiency of the government administration.
How did the judgement impact the reservation policies in India?
The Supreme Court’s judgment provided clarity in the constitutional validity of the reservations in promotions and also highlighted the need to maintain a balance between the injustices and efficiency of the government administration.
Which Constitutional amendment was challenged mainly in this case?
The petition challenged the constitutionality of the Constitution (Eighty-Fifth Amendment) Act, 2001. It provided reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs).
Can the case potentially lead to a reverse discrimination scenario in India?
The judgment aims to address the injustice that has been present in society since time immemorial. However, some argue that it might inadvertently discriminate against individuals not covered in the reservation policies. However, the court has emphasised maintaining a balance to prevent such scenarios.
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This article is written by Sri Vaishnavi, and further updated by Debapriya Biswas.The article deals with the analysis of the landmark case of A.D.M. Jabalpur vs. Shivkant Shukla (1976). It discusses the issues raised in the case and the principles established by the Supreme Court to address these issues. Lastly, the article traces the significance of the judgement as well as the future implications it may have brought even in the present times. The case primarily dealt with the balance between the interests of the State and the rights of the citizens of the country, particularly during the proclamation of an emergency.
Table of Contents
Introduction
The fundamental rights enshrined in Part III of the Constitution of India, are a part of the basic structure of the Constitution. It not only establishes the rights of the citizens but also stands as a protector of the universal rights that are derived from natural law. Without these rights, the overall development of an individual could be compromised, leading to poor quality of life and even deprivation of the full potential they could achieve. Thus, every nation has codified the basic human rights or the ‘fundamental’ rights to prevent the same from happening.
However, in some circumstances, fundamental rights can be restricted or even suspended for a limited period, such as in the case of national or state emergencies. During the emergency period, certain fundamental rights are suspended in the interest of the State and its security. However, the question that arises here is regarding the extent to which the State should be prioritised and whether it would be constitutional to suspend even the crucial fundamental rights, such as the right to life and personal liberty during such dire times.
Additional District Magistrate, Jabalpur vs. Shivkant Shukla
Parties in the case
Petitioner: Additional District Magistrate, Jabalpur
Respondent: Shivkant Shukla
Court
The Supreme Court of India
Judges/Coram
Hon’ble Chief Justice of India A.N. Ray;
Hon’ble Justice Hans Raj Khanna;
Hon’ble Justice M. Hameedullah Beg;
Hon’ble Justice Y.V. Chandrachud;
Hon’ble Justice P.N. Bhagwati.
Date of judgement
April 28th, 1976
Citation
AIR 1976 SC 1207, 1976 SCR 172, 1976 SCC (2) 521.
Background of the case
Till date, national emergency has only been proclaimed three times in India. The first one was declared by the then Prime Minister, Jawaharlal Nehru, in October 1962, due to Chinese hostility leading to external aggressions. It lasted till 1968 and was only lifted after public dissatisfaction. The second national emergency was proclaimed on December 3rd, 1971 due to external aggressions from Pakistan. To deal with the emergency more effectively and efficiently, the Maintenance of Internal Security Act, 1971 (hereafter referred to as the MISA) was introduced.
It wasn’t until November 16, 1974, that the President of India declared through an ordinance, that the right to approach the judiciary with regard to detentions made under Section 3(1) (power to make orders detaining certain persons) of the MISA, and for the enforcement of rights under Article 14 (right to equality), Article 21 (right to life and personal liberty) as well as Article 22 (prevention against detention in certain cases), would be suspended for six months from the issue of the order or till the emergency period ends, whichever is earlier. This also included the suspension of all the proceedings pending in the court relating to the same. This was the first order that started the suspension of rights during a national emergency, although it was for a limited period of six months at the time.
It was later amended on June 20, 1975, to increase the period from six months to twelve months, before being completely suspended for the whole duration of the emergency in an order dated June 27, 1975. These orders were proclaimed by the President in the exercise of the powers conferred by Article 359(1) (suspension of the enforcement of rights conferred by Part III during emergencies) of the Indian Constitution.
However, the key issue with these orders was not only the restrictions of the rights themselves but also their time limit. The initial six months extending up to a year and then till the end of the emergency, which can take more than a few years, was quite arbitrary and prone to misuse. The present case is the very proof of the same when the third national emergency was proclaimed in India.
Historical Background
The history behind the current case starts with the judgement of another case, namely, State of Uttar Pradesh vs. Raj Narain & Ors (1975), in which the then Prime Minister of India, Indira Gandhi, was held guilty of unlawful practices relating to elections in Lok Sabha. The respondent of the aforesaid case, Raj Narain, had initially filed a petition before the Allahabad High Court in which he alleged that Indira Gandhi had committed malpractices like financial misuse of public funds to get re-elected as the Prime Minister. The government had, interestingly enough, failed to submit any affidavit against the allegation made. This made the High Court of Allahabad hold the judgement in favour of Raj Narain, aggrieved by which, the State appealed it to the Supreme Court of India.
The Supreme Court also held the judgement in favour of the respondent, Raj Narain and put a conditional stay to the previous verdict. The Court further declared the previous election as void and convicted Indira Gandhi for her malpractices, by restricting her right to participate in the elections or even represent herself as a member of the Lok Sabha for the next six years.
However, before another election could be conducted or Indira Gandhi’s reign could be set aside, she requested to declare a national emergency under Article 352 (proclamation of emergency) of the Indian Constitution, which the then President, Fakruddin Ali, proclaimed on June 25, 1975 by an ordinance. This proclamation of emergency was made through a late-night nationwide broadcast on All India Radio.
This was the third and last national emergency ever declared in India to date, with the reason for such an emergency being that ‘internal disturbances’ were threatening the government. By doing this, Indira Gandhi was able to prolong her reign by delaying the enforcement of the judgement in the State of Uttar Pradesh vs. Raj Narain (1975), despite being asked by the Allahabad High Court to refrain from parliamentary proceedings.
Although it can be argued that India was indeed amidst turmoil at the time, given how there was a statewide strike in Gujarat known as the ‘Navnirman Andolan’, which was organised on January 25, 1974. It resulted in a short curfew being placed on at least 44 towns of Gujarat before the army was summoned to restore public order. In addition to that, another movement was happening in Bihar at the same time, which was led by the popular socialist Jayaprakash Narayan along with many other Indian students against the corruption of the state government. The year 1974 also saw the largest industrial strike in history by the 17 crore workers of the Indian Railways, which lasted up to 20 days.
Be that as it may, it cannot be argued that most of these movements of unrest happened long before the emergency was declared and were resolved subsequently as well. Thus, these movements cannot be held as the ‘internal disturbances’ cited by the President.
On June 27, 1975, the President enforced Article 359(1) of the Indian Constitution, as per which, the right to approach the court under Article 14, Article 21 and Article 22 was suspended for the period of the national emergency, for all the Indian citizens and foreigners. All the ongoing proceedings relating to the enforcement of the aforesaid Articles were also suspended. The aforesaid presidential order also stated that the same would be applicable to any and all orders made before the current order. On June 29, 1975, the President made the previous ordinance applicable in Jammu and Kashmir as well, through another presidential order.
The aforesaid presidential orders and ordinance resulted in the arrest and detention of anyone who was deemed to cause ‘internal disturbances’ through riots or any other political threats to the present government. All such detentions were made as a preventive measure under the MISA, the sufferers of which were mostly leaders from opposition parties, who were more of a threat to Indira Gandhi and her political position, than the country and its internal system.
In addition to this, many further amendments to the Constitution, as well as other statutory laws were introduced during the emergency, in favour of the present government, which were also opposed by the public and the aforesaid opposition leaders. A more detailed evaluation of the facts of the same would be covered further in the article.
Social background
The 1970s was a very crucial period for India, especially with the recent conflicts with its neighbouring countries still brewing after proclaiming its independence from the Britishers quite recently. At that time, the interests of the State were prioritised in a manner that maintained the much needed stability and security of the nation. Even a hint of unrest could result in chaos amongst the public and threaten the sovereignty of the State and the government, while also jeopardising the safety of its citizens.
Unfortunately, this also meant that with the priority given to the State, the interests of the individuals were overshadowed, if not compromised, in the name of the ‘greater good’ of the nation. India was still establishing its position as an independent nation after being ruled by others for centuries — a fact known by all and also used to justify the need for the State to be given more power to ensure security and safety.
However, unrestricted power gives way to arbitrariness and that can result in cases of violation of fundamental rights of the citizens. This was best observed during the emergency period when the restriction on individual rights was stricter, but all the power and its enactment was made in favour of the State.
The present case of A.D.M. Jabalpur vs. Shivkant Shukla was a prime example of the same. A nationwide emergency was declared, citing ‘internal disturbances’, with no real threat to be proven. The whole proclamation of emergency was used as a measure for the then Prime Minister, Indira Gandhi, to maintain her position for a longer period and prolong her reign, to avoid being removed.
With the emergency provisions misused in this manner, they were further used as an excuse to cover the gross violation of fundamental rights of the citizens, especially those who were deemed a ‘threat’ to the State due to their political opinions. They were detained indefinitely and without any sufficient grounds that were not even communicated to them or their family. These detentions were made as a ‘prevention’ and, thus, had no proper trial. The complete control over the citizens without any check or balance from any other organ of the government, led to quite a few constitutional actions, including overreaching amendments and human rights violations.
While it is true that internal disturbances are also a valid reason for the proclamation of national emergency, it is to be assumed that such should only be done in case of extreme situations, such as civil war and widespread rebellion across the nation. Even then, restrictions on fundamental rights under Articles 14, 21 and 22 are very extreme and can be misused in the most inhumane manner, especially the suspension of the right to life and personal liberty. A democratic nation completely suspending all fundamental rights of its citizens sounds quite contradictory for a country whose government is made for the people, by the people, of the people.
A national emergency in itself is an extreme measure that was designed to be opted only in extreme circumstances. Even if not the case, the suspension of certain fundamental rights could lead to an arbitrary State with no opposition. In the present case, since Articles 21 and 22 were suspended till the end of the emergency period, anyone saying anything against the government was detained without a proper trial or procedure.
These unlawful detentions made for indefinite periods not only violated the basic human rights of the citizens but also opened the path for custodial violence. It infringed the freedom of expression and even the right to be heard by a legal representative since none of the detainees were brought in front of a proper judicial authority after their preventive detention. In a democratic nation like India, losses like this can be very critical if left unchecked and not addressed appropriately.
Unfortunately, at the time of the third emergency, India was still learning and so was the public. Legal, as well as political awareness, was very limited among the people of India. In addition, the political influence of the government was much stronger than before and could result in biased opinions and judgements, as we would further read in the article.
It wasn’t until the emergency was lifted and the political scenario of India changed that genuine opinions were shared regarding the proclamation of emergency and the oppression of the public during the said emergency period, as seen in the present case and its aftermath.
Legal background
According to Dr B.R. Ambedkar, the Indian federal system should use the provision of emergency as a last resort and the government should change itself to a unitary system from a democratic one to safeguard the Constitution and the nation itself. With all the power centralised in the hands of the State, it can become better equipped to deal with the internal or external aggression due to which the emergency was declared in the first place.
This power of the government is derived from the constitution itself. There are three types of emergencies under Part XVIII of the Indian Constitution:
National emergency
Failure of constitutional machinery in states
Financial emergency
Article 352 of the Constitution talks about a national emergency, which can be declared in case of war, external aggression or rebellion. During this period, the central government takes all the powers in its hands, namely, the executive, legislative and financial powers of the State.
During the period of a national emergency, except Articles 20 and 21 of the Indian Constitution, all other fundamental rights are suspended. The President can also suspend the right to approach courts by enforcing Article 359. Furthermore, the union government can make legislation on state list items by way of Article 250.
Article 356 of the Indian Constitution talks about the second type of emergency, which is the state emergency in case of failure of constitutional machinery. In simpler terms, if a state fails to follow provisions enshrined in the Indian Constitution or goes through a severe incident, (such as armed conflicts, riots or civil unrest), then the President can declare a state emergency based on their own observations or on the formal request of the Governor of the said state.
State emergencies can also be declared if a state is under biosecurity or at risk of going through an epidemic that may spread all across the nation if not immediately isolated. Natural disasters can also result in the proclamation of a state emergency, depending on its severity and the needs of the state. In addition, Article 365 of the Indian Constitution also talks about state emergency in case the state fails to comply with or enforce any direction given by the union government.
State emergency under Article 356 of the Constitution, which is also known as the ‘President’s rule’, has been declared more than 125 times across India, in the past few decades. In fact, more than a fifth of these instances were recorded under the regime of Indira Gandhi from 1966 to 1977, specifically in the states where the political party Congress was not in power. This clearly showcases how extensively such provisions can be misused if no proper limitations are placed.
Lastly, Article 360 of the Indian Constitution talks about the third type of emergency, that is, financial emergencies. As per this constitutional provision, if the State is going through economic instability and insufficient credibility, the President can declare a financial emergency. This is to be done when there is no other means to address the issue, other than proclaiming emergency. To this day, no financial emergency has been declared in India.
Later on, further changes were brought into the emergency provisions through the 44th Amendment of the Indian Constitution, which we will be covering in detail later on in this article.
Facts of A.D.M. Jabalpur vs. Shivkant Shukla (1976)
As covered earlier in the article, the third Indian national emergency was declared on June 25, 1975, due to internal disturbances that were threatening the stability of the government and the nation itself. However, it is widely believed that the proclamation of emergency was more to prolong the reign of the then Prime Minister Indira Gandhi than internal disturbances claimed.
After the declaration of emergency, another presidential order was enforced on June 27, 1975, which suspended the right to approach the Court for petitions relating to Articles 14, 21 and 22 under Article 359(1) of the Indian Constitution. This order was applicable to both foreigners and Indian nationals. Furthermore, it also suspended the ongoing judicial proceedings relating to the above mentioned Articles. Another order on June 29, 1975 made the same applicable in Jammu and Kashmir as well.
After this, certain amendments were introduced in several statutory laws, as well as in presidential orders, from the period of June 25, 1975, to January 26, 1976. These amendments were as follows.
The President promulgated amendment orders nos. 1 and 7 of 1975 and replaced them with the MISA (Amendment) Act, 1975, which introduced a new Section 16A (special provisions for dealing with emergency) and gave effect to Section 7 (powers in relation to absconding persons) of the said legislation, with some changes. The law was enforced from June 25, 1975, and the other provisions came into effect on June 29, 1975. By the same Act, a new Section 18 (exclusion of common law or natural law rights, if any) was also inserted, with effect from June 25, 1975.
On October 17, 1975, another presidential ordinance was passed, as order 16 of 1975, which introduced new amendments to Section 16A of the MISA, by adding Sub-sections (8) and (9). Sub-section (8) of Section 16A specifies that the state government has the obligation to report and notify the central government of any detentions made, as well as modifications and revocations that are to be made to the orders of detention. Sub-section (9) states that the grounds for detention or declaration of detention order, modification or revocation of detention orders, and confirmation or review of the detention, shall all be treated as confidential and as affairs of the State and shall not be shared with the public.
On November 16, 1975, ordinance no. 22 of 1975 was enacted. It again introduced some changes to the MISA, by inserting sub-section 2A in Section 16A. All the amendments made by the order had the retroactive effect of validating all the previous laws. The afore-mentioned orders were published on January 5, 1976, under the Maintenance of Internal Security Act of 1971 (Law No. 14 of 1976).
The resultant effect of many of these amendments was the unlawful arrest and detention of many political figures throughout the nation. Most of these political figures were prominently known for their activism either against the then Prime Minister Indira Gandhi or were affiliated with the opposition parties of the time.
In addition to this, most of the detained individuals were not informed of the grounds for their detainment. These detentions lasted till even after the emergency period, making many of the detainees file writ petitions in the High Courts, for release, as well as challenge the authenticity and legality of such detentions and the amendments introduced during the emergency period that allowed these detentions.
The defendants were detained under Section 3(1)(a)(ii), read with Section 3(2) of the MISA, 1971. The aforesaid legislation had been challenged in several High Courts alongside the order of the President of India dated June 27, 1975 which declared the suspension of the right to approach the Court for the enforcement of Articles 14, 21 and 22. The High Courts ruled in the favour of the petitioners, declaring the aforesaid legislation and order unconstitutional and inoperative. It invoked the annulment of the order and also pronounced the defendant’s immediate release.
In some cases, they questioned the validity of the amendments against Article 38 (State to secure a social order for the promotion of the welfare of the people) and Article 39 (certain principles of policy to be followed by the State) of the Indian Constitution. When these petitions were filed, the petitioners raised the preliminary objection of maintainability, on the ground that, for the request of release of the detained individuals, a writ of habeas corpus was issued. They contended that the accused, alleged in essence, had been deprived of their personal liberty in violation of the procedure established by law.
Only by considering Article 21 of the Indian Constitution and taking into account the presidential order of June 27, 1975, which suspends the right to request the execution of the right conferred by this Article, the petitions were rejected at the threshold. While the High Courts of Andhra Pradesh, Kerala and Madras confirmed the preliminary objection, the present dispute was not favourably received by the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Madhya Pradesh, Punjab and Haryana.
In simpler words, most of these petitions were held in the favour of the petitioners, that is, the detained individuals, and not the State. One such petition was the present case, which was initially filed as a writ of habeas corpus, by the wife of Shivkant Shukla. Shukla, the respondent in the present case, was a political activist detained under preventive detention during the emergency period. He was arrested and detained without any trial for an infinite period, under the MISA.
The Allahabad High Court decided in favour of Shivkant Shukla. Aggrieved by the decision, the State appealed to the Supreme Court to challenge the aforesaid decision, along with other petitions filed by individuals detained during the emergency.
Issues raised
The issues raised before the Supreme Court of India were as follows:
Whether a writ petition under Article 226 (power of the High Court to issue certain writs) of the Indian Constitution is maintainable when enforcing Article 21 during a national emergency proclaimed under Article 359(1) of the Constitution.
Whether the ordinance issued by the President on June 27, 1975 was unconstitutional.
Whether there was any scope for judicial review during an emergency.
Arguments of the parties
Petitioner
The primary contention of the petitioner of this case was that emergency provisions enshrined in the Indian Constitution empower the executive part of the government to exercise complete control over all the state affairs, in a way that stabilises the State. Since emergencies are only to be applied in situations where the sovereignty and Constitution of India are threatened, the considerations of the State and its security should take priority over individual interests and rights. Without a secure and stable State, the safety of the citizens could not be guaranteed as well.
Other than that, the petitioner also contended that the State had no obligation to release the individuals detained during the national emergency, even if no sufficient reason for detainment was to be found. Article 22 of the Indian Constitution, along with the other fundamental rights, was suspended during the emergency period and thus, any writ petition in pursuance of the same should not be valid. Furthermore, the right to approach the Court for enforcement of Articles 14, 21 and 22 was also suspended by the presidential order issued under Article 359(1).
The petitioner also argued that the suspension of fundamental rights, specifically Article 21, is a constitutional mandate during national emergencies and could not be implied as unconstitutional or arbitrary in nature. Approaching the Court for the enforcement of the same, in turn, should also be suspended since the right itself is restricted in the given circumstances. It cannot be implied as an absence of the rule of law.
Lastly, emergency provisions such as Article 358 and Article 359(1) are constitutional mandates that are necessary for the maintenance of the stability of the State during external aggression or even internal disturbances. These provisions allow the executive to gain complete control over all the affairs of the State and take necessary steps needed for the maintenance of the security of the country and its citizens.
Respondent
On the other hand, the respondent argued that Article 359(1) did not empower the executive organ of the government to make laws during the emergency period. The objective of the aforesaid provision is to unify all the powers under the government, not restrict the legislature completely. While the executive did have the power to issue ordinances and orders even in violation of fundamental rights during the emergency, the power did not extend to statutory or constitutional amendments. The principle of limited power of the governmental organs, such as the executive, was still applicable during the emergency under the system of checks and balances based on the doctrine of separation of powers.
The respondent further contended that Article 359(1) restricted the approach to the Supreme Court of India under Article 32 for the enforcement of fundamental rights, but not any of the High Courts under Article 226 of the Indian Constitution. Moreover, while the article suspended some of the fundamental rights, including the right to personal liberty under Article 21, it has no effect on other statutory and common law rights pertaining to the same. As such, approaching the Court for the enforcement of the right to personal liberty through statutory provisions should not be suspended or restricted.
In addition, the validity of the presidential order, as well as the ordinance, can only extend to certain fundamental rights as per the emergency provisions and not statutory or common law. Thus, approaching the Court for the enforcement of any statutory law or common law should not be held invalid against the presidential order.
It was also contended that Article 352 of the Indian Constitution limits the executive, legislative and financial powers of the State to cope with emergency situations such as internal disturbances, rebellions, external aggression and war. As such, the limitation of the scope of executive and legislative powers is nothing more than what is mentioned under Article 162 of the Constitution.
Furthermore, even during an emergency, presidential orders cannot restrict statutory rights, common law rights or even contractual rights. In fact, constitutional rights which are not fundamental rights cannot be restricted by such orders either since any presidential order under Article 359 (1) does not have the power to suspend any fundamental right.
The respondent also argued that under Section 3 of the MISA, the State can only arrest the individuals who have fulfilled the conditions mentioned under its clauses. Any detention that does not fulfil the same would be considered beyond the scope of the Act.
Lastly, the respondent emphasised that the Preamble of the Indian Constitution speaks of India as a sovereign, democratic and republic nation and, therefore, the State shall not act to the detriment of the citizens unless prescribed by the law. Even then, the procedure established by law shall be followed and all such detrimental actions shall be limited to the extent as prescribed.
Laws discussed in A.D.M. Jabalpur vs. Shivkant Shukla (1976)
Given below is a brief of the legal provisions discussed in the present case analysis:
Constitution of India
Article 358
Article 358 deals with the suspension of provisions under Article 19 of the Indian Constitution during emergencies. Given below are the brief of its clauses:
While an emergency proclamation states that the security of India or any part of its territory is threatened by war or external aggression, nothing is at stake. Article 19 will restrict the power of the State as defined in Part III to make any law or take any executive action that the State would like, but the provisions contained in that Part would be competent to do or take, but any law thus made, the extension of the incompetence, will cease to have effect as soon as the Proclamation ceases to function, except that incompetence respects things done or omitted before the law ceases to have effect.
Provided that when said emergency proclamation is in force only in any part of the territory of India, any such law may be made, or executive action of this kind may be taken under this article in relation to or in any territory of the State or Union in which or in any part from which the emergency proclamation is not operational. Further under the condition that to the extent that the security of India or part of its territory, is threatened by activities in or in relationship with the part of the territory of India in which the emergency proclamation is in operation.
Nothing in clause (1) shall apply- (a) to any law that does not contain a recital in the sense that such law is related to the emergency proclamation in effect when it is made, or (b) to any executive action adopted from otherwise, by virtue of a law that contains said recital.
Article 359
Article 359 of the Indian Constitution talks about the suspension of the enforcement of fundamental rights by the courts during emergencies.
Clause (1) of the aforesaid Article states that when an emergency proclamation is being executed, the President may, by means of an order, declare that the right to transfer to any court for the execution of the rights conferred by Part III of the Indian Constitution (except articles 20 and 21), as may be mentioned in the order and all proceedings pending in any court for the enforcement of the aforementioned rights, will remain suspended for the period during which the proclamation is in force or for the shortest period specified in the order.
Furthermore, clause (3) of Article 359 specifies that any order made under clause (1) shall be presented before both Houses of the Parliament soon after it is made.
Meanwhile, clause (1A) deals with the power of the State to take any executive actions or make laws. As per this clause, no order made under clause (1), mentioning any of the fundamental rights conferred under Part III of the Constitution, except Articles 20 and 21, shall affect the powers of the State during an emergency. Such order shall cease to operate once the emergency ends and any law based on such order shall also cease to be enforced at the same time.
Clause (1B) mentions the exceptions of the above, stating that any law made by the State, which is not in relation to the emergency or even has any reference to the same, shall remain in effect even after the emergency ends. It also extends to any executive action taken by the State, under a law that has no reference or relevance to the proclamation of the emergency.
Essential ingredients of Article 359(1)
The emergency proclamation must be in force to declare and enforce Article 359(1). The President may order not to apply or approach a court for the application of the fundamental rights set out in Part III of the Constitution. In any order, the enforcement procedures will remain suspended for the duration of the proclamation.
Difference between Article 358 and Article 359(1)
Article 358 specifically suspends the fundamental rights enshrined under Article 19 of the Constitution, only to the extent that the legislator may frame laws despite being violative of Article 19, when the emergency is proclaimed.
Under Article 358, the executive may take any action that it may need to, under such statutes. Article 358 does not suspend all fundamental rights, while Article 359(1) suspends any ongoing proceedings for the application and enforcement of all the fundamental rights (except Articles 20 and 21) enshrined in the Indian Constitution. Article 358 is limited to fundamental rights under Article 19 only, while Article 359 extends to all those fundamental rights whose execution can be suspended by the presidential order.
Article 358 automatically suspends fundamental rights under Article 19, as soon as a state of emergency is declared. On the other hand, Article 359 does not automatically suspend any fundamental right. It allows the President to suspend the application of the specified fundamental rights based on the needs of the State at the given time. Not all circumstances may require the suspension of fundamental rights and their enforcement by the Courts.
Article 358 only works in the event of an external emergency (i.e. when a state of emergency is declared because of war or external aggression) and not in the case of an internal emergency (this is to say when the state of emergency was declared on the basis of armed rebellion). Article 359, on the other hand, applies both in the case of an external emergency and an internal emergency.
Article 358 suspends fundamental rights under Article 19 for the duration of the emergency, Article 359 suspends the application of fundamental rights for a period specified by the President, which can be either the entire duration of the emergency or for a shorter period.
Article 358 applies to the whole country, while Article 359 applies to all or part of the country. Article 358 suspends Article 19 completely, while Article 359 does not authorise the suspension of the application of Articles 20 and 21.
Article 358 authorises the state to legislate or to take any measure incompatible with the fundamental rights set out in Article 19. Meanwhile, Article 359 authorises the State to legislate or to take enforcement action contrary to the fundamental rights and its execution that is suspended by order of the president for the time.
There is also a similarity between Article 358 and Article 359. Both provide immunity from contestation, only to emergency laws and not to any other laws. In addition, executive measures taken only under such a law are protected by both.
In the present case, the oblique reference indicates that “…no freeman shall be imprisoned, imprisoned, sick or banished, or destroyed in any way except by the judgement of his own people or the law of the land.” The document is with the detainee or someone else on his behalf, so he goes to court to oppose the detention. The person or his representative must prove that the authority or court that ordered the arrest committed an error of fact or of law. It is clear that the habeas corpus appeal remains the most powerful process by which any citizen can challenge the correction of the restriction on individual liberty. Article 21 of the Indian Constitution guarantees the right to life and liberty of every citizen of the nation.
The right to apply to a court to enforce the aforesaid article was suspended under Article 359 when the emergency due to ‘internal disturbances’ was imposed (1975-1977). The logical question that followed was whether the Habeas Corpus order was enforceable in such a situation. The historic case of A.D.M. Jabalpur vs. Shivkant Shukla (1976) or the habeas corpus case attempted to answer this question and was at the origin of the 44th Constitutional Amendment in 1978. This amendment, adopted unanimously, guarantees that Article 21 cannot be suspended even in case of emergency.
Maintenance of Internal Security Act, 1971
The Maintenance of Internal Security Act or the ‘MISA’ Act of 1971 was quite a controversial legislation that was enforced and amended during the regime of Indira Gandhi as Prime Minister. This Act deals with the powers of the State, especially during an emergency, which includes preventive detention for an indefinite period, search and seizure of property without a warrant, along many others to curb internal disorder during an emergency. However, the aforesaid Act was repealed in 1977 due to its misuse and the facilitation of arbitrariness brought through its provisions.
Following are some of the important provisions of the Act relevant to the present judgement:
Section 3
Section 3 of the MISA talks about the power of the government to make orders detaining individuals. Both the state and the central government can make orders under this section, against any individual who is a citizen of India or even a foreigner at the time.
As per Sub-section (1) of this Section, the government can order a preventive detention of any foreign or Indian citizen if they so deem it necessary for the security of India, any of its state or public order. Such detentions can also be made to maintain international relations with another nation.
In the case of foreigners, an order specifying their status of arrangement needs to be presented with directions on whether the individual should be deported to another country or should stay within India along with regulations on the respective arrangements to be made.
Meanwhile, Sub-section (2) talks about officers such as District Magistrates, Additional District Magistrates and Commissioner of Police, and their power to issue orders under the aforesaid section during the emergency. Before issuance, such orders and their grounds given by the officers need to be approved by the state government they are subordinate to, under Sub-section (3). Once issued, the state government needs to report the same to the Central government.
Section 11
Section 11 of the MISA discusses the procedure of Advisory Boards, which is established as a statutory authority under Section 9 of the same Act. Section 10, on the other hand, talks about referencing the detentions made under this Act to the Advisory Board at the earliest.
As per Section 11, the Advisory Board has the power to hear the detained individual and their representation against the order of their detention. The board, once satisfied with the information received about the detention, can call upon the detainee for a hearing if the individual concerned desires so. Once the hearing is over, the Advisory Board will submit a report of the same to the State within ten weeks of the detention.
The aforesaid report shall also have a separate part mentioning the opinion of the Advisory Board on whether the grounds presented for the detention are of sufficient cause or not. Such an opinion would be made through a simple majority voting of members of the board.
Section 12
This section talks about the further action that is to be taken on the report submitted by the Advisory Board. As per Section 12, if the board is of the opinion that there is sufficient cause for the detention, then the State may confirm the order of the said detention and continue the detention. However, if the board finds the grounds of detention insufficient, the State has the obligation to revoke the order of detention and release the detainee at the earliest.
In the present case, however, the reference of the Advisory Board established under this statutory law was not sought nor was their opinion on whether the detentions made by the State carried sufficient ground or not.
Section 16
As per Section 16, no suit or legal proceedings can be filed against the State or any officer making the detention if such detention was made in good faith or done in pursuance of the provisions under the MISA of 1971.
Section 16A
Section 16A of the MISA is one of the provisions that was specifically made to be applied during the emergency period. It was introduced by an amendment in the Act in 1975 and mostly dealt with the procedure of detention during emergencies.
Sub-section (2) of this Section specifically talks about the enforcement of this section and the review and approval of the detentions made by the appropriate government during the emergency. If the detention of an individual is considered necessary for effectively dealing with the emergency, the State has the power to detain them indefinitely after communicating the same to the detainee within twenty days of detention under Sub-section (3).
In addition, the State also needs to reevaluate every four months whether the detained individual is still necessary for effectively dealing with the emergency. If, on reconsideration, it is held that there is no further necessity for the detention of the concerned individual, then the State can revoke their order of detention under Sub-section (4) of this Section. However, the detainee does not have any right of representation during such review or consideration. The State has no obligation to let the concerned individual know about the review and its result unless it is through the revocation of the order of detention.
What sets this section aside from the rest of the Act is that subsection (6) explicitly states that for any detention made under Section 16A, other sections of the Act do not apply the same. Sections 8 to 12 of the MISA would not apply to such detentions at all while Section 13 would apply with modification. This subsection completely sets the Advisory Board aside, which was the only check and balance stopping the State from making arbitrary arrests and unlawful detentions under this Act.
Furthermore, Sub-section (9) also states that the grounds of detention or declaration of detention order, modification or revocation of detention orders and confirmation or review of the detention — all these information are to be treated as confidential and affairs of the State. Thus, it would not be disclosed to the public or communicated even to the detainee unless stated otherwise. This not only goes against Article 22 of the Indian Constitution but also completely disregards the procedure established by law for arrests and detention under the Criminal Procedure Code, 1973.
Both these subsections completely contradict the procedures mentioned in the rest of the Act, giving the State all the power without any restriction or consideration for the rights of the detained individuals. This made Section 16A very controversial and highly probable to be misused, which it was.
On the other hand, Sub-section (8) of the Section does specify that the state government has the obligation to report and notify the central government of any detentions made and modifications and revocations that are to be made to the orders of detention. But no one outside the government and as a part of the public has been given the right to be privy to such information, even the detained individuals themselves. This limitation on information was applicable even after the emergency, making such detentions completely in favour of the State at the cost of the people’s basic human rights.
Section 17A
Section 17A of the MISA was a provision added later, in an Amendment made in 1975, to discuss the duration of detention for special cases, such as during an emergency. As per this Section, any individual (foreigner or Indian national) can be detained by the State, without referencing or obtaining any opinion from the Advisory Board for more than three months but not exceeding two years from the date of detention in certain cases, which includes preventive detention for the security of India and its foreign relations as well as any detention made to maintain public order.
The biggest issue with this Section, is that it is both vaguely phrased to have a wide interpretation that can be abused, and does not have any grounds that can specify what may be defined as disruption of public order or the security of India.
Section 18
This is another Section that was added by an amendment to the MISA, in 1975, which was both controversial and abused at its time of enforcement. As per Section 18, no individual detained as per Section 3 of this Act, either a foreigner or an Indian national, has any right to personal liberty under common law or natural law rights, if any.
Judgement of the case
Ratio decidendi
The unasked question of the present case was whether the State’s interest would triumph over the individual’s interests and rights of the citizens, especially in cases where the security of the nation was concerned. While not raised as an issue directly, this question highlighted the distinction between positive and natural law, bringing the Court’s attention to another question — which would prevail in a situation such as this?
As per the Supreme Court in the present case, just because the fundamental rights lie as both constitutional rights and natural rights, it does not make the enforcement of these rights during the emergency period under Article 359(1), invalid. It merely makes the said constitutional provision overshadowed, according to the doctrine of eclipse.
However, enshrined in the Indian Constitution, are also the provisions for the proclamation of emergency, which stand to be one of the few restrictions on fundamental rights. Since an emergency is usually only proclaimed during a necessary period when the State is either in unrest or has lost its security, the interest of the State overshadows that of the individual. Thus, in such cases, the inconsistencies observed are to be interpreted harmoniously as per the required situation.
Given the presidential order of June 27, 1975, as per clause (1) of Article 359, no one has the right to file petitions of habeas corpus under Article 226 of the Constitution, to a High Court or any other writ or order, to enforce any right to the personal liberty of a person detained under the MISA, 1971 on the grounds that the warrant of arrest or detention is for a reason not in accordance with the law, illegal or masculine. In case of emergency, the executive authorities protect the life of the nation. Article 358 of the Indian constitution also provides that as long as the proclamation of emergency is in effect, all laws, orders and executive actions in contravention of Article 19 would be considered valid.
As per the judgement held in the State Of Madhya Pradesh & Anr vs. Thakur Bharat Singh (1967), the suspension of enforcement of certain fundamental rights is prescribed only to protect the security and interest of the State and its agents in cases of emergency. The safeguarding of liberty is in the good faith of the people and in line with a representative and responsible government. If extraordinary powers are granted, they are granted because the urgency is extraordinary and limited to the emergency period. Freedom as a gift of the law, is both given and defined by the legal provisions. However, it is similarly limited or abridged by the same law.
The best example of this can be seen through the application of Article 359(1), which suspends the enforcement of any fundamental right enshrined under Part III of the Indian Constitution. Once mentioned in a Presidential Order, the aforesaid provision would be enforced throughout India for the duration of the emergency period. It does not make any distinction between the type of emergency, whether it is caused due to war, external aggression or internal disturbances. Whatever may threaten the security of the nation and warrants the need for the proclamation of emergency would be within the purview of this constitutional provision.
The purpose of Article 359(1) is to not only limit the enforcement of the fundamental rights to the legislative domain, but also to the actions of the executive branch and the implementation of the judicial proceedings. All laws relating to the fundamental rights would be temporarily suspended as well, while the ongoing judicial proceedings regarding the same would be halted from enforcement of any decree.
The Court observed that this constitutional provision limits the fundamental rights during the emergency period to centralise power in the hands of the State and minimise any lengthy proceedings that may act as a deterrent in the path to achieving public order and security of the nation. Article 359(1) achieves the said purpose by also suspending the right to approach any court for the enforcement of fundamental rights during an emergency.
It was also noted that Article 359(1) removes the jurisdiction of the High Courts under Article 226 and the Supreme Court under Article 32 for the fundamental rights mentioned in the presidential order enforcing it. Thus, based on this rationale, it can be concluded that a writ petition of habeas corpus cannot be filed before the High Court and enforced for the same.
Furthermore, Articles 352 and 359 of the Indian Constitution are exempted from any remedies in the courts even after the duration of the emergency. Since the executive action taken during the emergency falls under the rights of the President enshrined in the said constitutional articles, no remedy can be sought for any such presidential orders or ordinances.
Thus, it cannot be said that Section 16A(9) of the MISA, 1971 is unconstitutional, solely on the ground that it affects the jurisdiction of the High Court under Article 226, when such jurisdiction is already removed during the emergency period. The Court also emphasised that Section 16A(9) of MISA expressly clarifies that issuing a rule of evidence does limit or affect the jurisdiction of the High Court under Article 226 and therefore, it cannot be considered unconstitutional in nature.
The Court reasoned that all executive actions operate in pursuance of some law or order that acts as the authority to support it. Thus, the amendments made in the MISA, including the introduction of Sections 16A and 18 are made with the clear intention that preventive detention should be a matter controlled exclusively by the executive organ of the State.
In addition, Section 18 of the MISA does not suffer from excessive delegation and is a valid piece of legislation. Part III of the Constitution confers fundamental rights in both a positive and negative language. To contend that the aforesaid Section is only applicable to post-detention actions, is against its language. Section 18 applies to all the orders of detention that are made under Section 3 of the same Act. In simpler words, no individual in respect of whom an order of detention is made or ‘purported’ to be made under Section 3, shall have any right to personal liberty by virtue of natural law or common law, if any. Relying on the judgements given in Poona City Municipal Corporation vs. Dattatraya Nagesh Deodher (1964) and Municipal Corporation vs. Sri Niyamatullah (1969), the expression ‘purports’ will be equated to the meaning ‘has the effects of’. Furthermore, since there is no natural law or common law right to habeas corpus, Section 18 does not come under the purview of the same.
Furthermore, the Court noted that the basic structure of the Indian Constitution includes the emergency provisions enshrined in it. Thus, they are to be regarded on the same pedestal as any other part of the Constitution that defines the sovereignty of India. The limits of judicial review must be coextensive and consistent with the right of an aggrieved person to complain about the invasion of their rights. The theory of the basic structure of the Constitution cannot be used to construct an imaginary part of the Constitution that might conflict with constitutional provisions.
As held in the landmark judgement of Kesavananda Bharati Sripadagalvaru vs State of Kerala (1973), the theory of the basic structure of the Constitution is nothing more than a means to determine the intent of the framers of the Constitution while drafting the said constitutional provisions. The parts that form the essential parts of the Constitution cannot be amended or removed if they contradict the intent of the Constitution itself. However, that does not mean the basic structure doctrine could build and add a new part to the Constitution. It is a theory that can be hardly considered as anything more than a part of a well-recognised mode of constructing a document. It cannot imply new tests outside the Constitution or be used to defeat already existing constitutional provisions.
Relying on the case of Indira Nehru Gandhi vs. Raj Narain & Anr (1975), both Chief Justice of India Ray and Justice Chandrachud stressed that the principle of the rule of law demands that the powers of the executive authorities be derived, as well as limited by law. Based on this view, the Court noted that the rule of law is not applicable in the present case, since emergency provisions enshrined in the Indian Constitution themselves are based upon the same principle. All the detentions made by the State under the emergency provisions follow the due process of law and so do the detentions made under the MISA. Furthermore, even during an emergency, the restrictions on fundamental rights have been applied universally upon both foreigners as well as Indian citizens. All of this follows the supreme law of the land, the Indian Constitution.
Lastly, it was also noted that the preventive detention being placed exclusively within the control of the executive authorities did not violate the principle of separation of powers, especially since it was for a fixed duration of the emergency period. Furthermore, no constitutional provision explicitly proposes preventive detention as a judicial function. Thus, since an order of preventive detention is not quasi-judicial in nature, there could be no question of violating the principle of separation of powers by placing it within the control of the executive organ of the government.
The Supreme Court also emphasised that the Indian Constitution does not recognise the principle of separation of powers in its absolute rigidity, as also mentioned in the case of Rai Sahib Ram Jawaya Kapur vs The State of Punjab (1955). The functions of different parts or branches of the government have been differentiated sufficiently, but not severed completely. However, that does not mean the Indian Constitution assumes the function of one organ belonging to another. The executive authorities of the State can exercise the power of administration or subordinate legislation when delegated so by the legislature. This can also be seen in the case of judicial functions- that the executive can be delegated in a limited manner.
Obiter Dicta
In the present case, the Supreme Court observed that no freedom or rights are absolute in nature. All fundamental rights have some restrictions and their suspension under the emergency provisions enshrined in the Constitution is one of those restrictions.
The court also emphasised that individual rights and freedoms are given the most value and priority in judicial decisions due to their role in the development of a free and democratic nation. However, in certain cases like during the proclamation of emergency when the security of the nation and the safety of its citizens might be in question, the restriction of fundamental freedoms is often necessary for the protection of the citizens themselves.
Not to mention that the interpretation of constitutional provisions for the proclamation of emergency cannot forgo the language that clearly states that the suspension of fundamental rights is required for the same. Not supporting the provisions given in the Indian Constitution without any reasonable cause would be meaningless.
Furthermore, the Supreme Court also observed that Article 21 of the Indian Constitution, which protects the right to life and personal liberty of an individual, is also an integral part of the fundamental rights which are mentioned to be suspended under the emergency provisions of the Constitution. In a manner, the detained individuals would be deprived of their freedom under Article 21 by due process of law only.
It was also agreed upon that Article 21 was not the only depository of the right to personal liberty and that there were other statutory laws and the common law. However, as the supreme law of the land, the Constitution takes precedence over all the other laws. Accordingly, the suspension of fundamental rights including the right to life and personal liberty under the constitutional provisions for proclamation of emergency would take priority over all the other laws.
The Court also noted that while natural law may be on equal footing as the fundamental rights enshrined in the Constitution, it does not override the expressed terms or language used in the statutory law. In simple terms, natural law, which is quite abstract and theoretical in nature, would not override positive law expressed through statutory provisions, which is more practical in its application.
Given below are some of the observations made by the constitutional bench of the present case, briefly highlighting the views and opinions of each member of the coram.
Chief Justice of India – A.N. Ray
Freedom, while cherished and protected, is also limited and controlled by law, either through statutory provisions or the common law. Without restrictions or limitations, one’s definition of freedom can infringe another’s. This ‘regulated freedom’, as Edmund Burke had once called it, is what we are familiar with in the current society, and not an abstract or absolute concept of freedom.
In democratic nations like India, this restriction or ‘regulation’ of freedom is derived from the faith of the people in their State, as well as their representative and government that has developed over time. Only when there is a situation of emergency, the State may grant extraordinary powers, whether for war, external aggression or armed rebellion. These extraordinary powers, which are granted to maintain the security and safety of the nation and its citizens, are strictly limited to the period of emergency and its urgency.
The only purpose of these powers is to ensure that even during a period of emergency, there is a balance between the interests of the State and the protection of its citizens, while dealing with whatever is threatening the security of the nation. This delicate balance between freedom and its regulation by the State is what showcases the maturity of a civilised and democratic nation.
Justice H.R. Khanna
The observations in the above-mentioned precedents show that the validity of the warrant of arrest could be annulled despite the presidential orders of 1962 and 1974, under Article 359, if the right was not covered by these presidential orders. The protection granted by the absolute presidents was conditional and limited to abandoning the challenge of the arrest warrants and other measures adopted under the provisions mentioned in these presidential orders with respect to the violation of the articles specified in these presidential orders.
If the detention of a detainee did not comply with the provisions mentioned in the presidential orders, the presidential orders did not have the effect of protecting the warrant of arrest and it was permissible to question the validity of the detention at the prison. The reason was not made under the specified provisions but in violation of those provisions.
Justice M. Hameedullah Beg
We can say that the Constitution is dominated by the rule of law because its general provisions consist of freedoms and rights like the right to individual liberty and the right of public assembly. These rights, based on the concept of rule of law, are protected by the constitutional provisions. Meanwhile, the other rights of private persons are presented to the courts in special cases. In many foreign constitutions, on the other hand, all the security conferred on the rights of individuals are derived from the general provisions of the constitution only.
Justice P.N. Bhagwati
There are three types of crises in the life of a democratic nation, and three well-defined threats to its existence.
The first is war, especially a war to repel the invasion when a ‘state must transform its political and social order in peacetime into a combat machine in wartime and surpass the skills and efficiency of war. the enemy.’ There may be a real war or a threat of war or preparations to deal with the imminent occurrence of the war, which can all create a crisis situation of the most serious order. The need to concentrate more power within the government and the contraction of normal political and social freedoms cannot be discussed in such a case, especially when people face the horrendous horror of national slavery.
The second crisis is a threat or presence of internal subversion intended to disrupt the life of the country and endanger the existence of a constitutional government. This activity can have various causes. Perhaps the most common is disloyalty to the existing form of government, often accompanied by a desire for change through violent means.
Another cause may be, strong dissatisfaction with some government policies. State applications within the federal government for linguistic or religious lines may fall into this category. The presence of powerful elements without law, perhaps without political motivation, but for various reasons that go beyond the scope of the ordinary mechanism of law, can lead to this problem.
The third crisis, recognized today as a measure of emergency sanction by the constitutional government, is collapsing or causing a collapse of the economy. It must be recognized that an economic crisis is such a direct threat to the constitutional existence of a country at war or internal subversion. These are three types of emergencies that can normally endanger the existence of constitutional democracy.
Justice Y.V. Chandrachud
The argument that Article 21 of the Constitution is not the only depository of the right to life and personal liberty is quite a crucial one. The said constitutional article has quite a wide interpretation, all made through numerous judicial precedents to protect the personal freedom of the people. However, that does not make Article 21 the sole repository of all personal freedom. Not all aspects of freedom of person are meant to be covered by Articles 19, 21, and 22 of the Constitution.
It is true that if any statutory law of the State mentions that no individual shall be deprived of their personal liberty except according to the procedure established by law, no presidential order can bar its enforcement. However, the premise of this argument assumes that there is legislation in the country that states the same, which it does not. There is no statutory law in India that confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law.
On the other hand, Section 18 of the MISA clearly stated that no individual detained under Section 3 of the aforesaid Act, either a foreigner or an Indian national, has any right to personal liberty under common law or natural law rights, if any. Thus, the actions of the State are valid and in accordance with the positive law as prescribed.
Supreme Court’s verdict
The case was discussed at length for about two months by the constitutional bench of five judges before any decision was made. The Supreme Court of India reached a conclusion only after a sentencing application was filed for the present case. The judgement was ruled in the favour of the petitioner, that is, the State, with the majority view passed by four members of the constitutional bench while Justice H. R. Khanna gave the dissenting opinion.
As per the majority opinion, it was held that the presidential order given on June 27, 1975, was constitutional and valid. Thus, in the view of the presidential order, no individual had the right to approach any court even through a writ petition to the High Court under Article 226 for the enforcement of fundamental rights that were suspended during the emergency. Any petition challenging the legality of any direction or order of detention on grounds of discrepancy with other statutory laws or common law or any unlawfulness was to be dismissed.
The Supreme Court held that all habeas corpus petitions previously filed under the various High Courts would not be maintainable as per the presidential order and were to be, thus, dismissed or recalled. The validity of the MISA of 1971 was also upheld, with its provisions like Sections 16A, 17A and 18 held constitutionally sound.
For the scope of judicial review during an emergency, the Court held that judicial review also has its limits, which should be coextensive and consistent in nature. As such, the Court cannot give the constitutional provisions an interpretation that is distinct from its wordings and not supported by its language. Furthermore, not supporting the provisions given in the Indian Constitution as they are expressed without any reasonable cause would be meaningless.
As mentioned earlier, the dissenting opinion was given by Justice H.R. Khanna, who stated that enforcing Article 359(1) may suspend the right of an individual to approach the Court for enforcing fundamental rights but not their statutory rights or the rights under common law. As such Article 21 is not the only provision that protects the right to life and personal liberty of an individual. Many other statutory laws and even the common law can act as a repository for the same and should be allowed to be enforced even during the period of emergency.
Justice Khanna also emphasised that the State does not have the power to deprive an individual of their right to life and personal liberty without following the due process established by law. This also applies during the proclamation of emergency. While Article 21 may lose its procedural power during the emergency, the substantive power still persists.
Analysis of the judgement
The judgement passed by the Supreme Court in this case has been criticised widely for decades, marking it as a black spot in the Indian judicial history. Instead of upholding the rights of the citizens, the judgement prioritised the interests of the State with a flawed interpretation of the constitutional provisions. No further remedy was provided to the detained individuals either, until the State released them on its own and not on account of the present judgement.
The right to life and personal liberty are one of the crucial parts of the natural law and are universally accepted to be inalienable from human life. Without this right, no individual can develop or grow to their full potential. It is the most widely interpreted constitutional provision and has been well known for acting as an umbrella for other rights that are not explicitly mentioned in the Indian Constitution.
To suspend such a basic human right would be encroaching on the very principle of democracy, as seen in the case discussed above. During the emergency period proclaimed in 1975, many individuals were detained for years and were not freed until much after the emergency was over. Most of these individuals did not even have any grounds to be detained, and even if they did, none were made aware of these grounds which were against the due process established by law.
While Article 21 of the Indian Constitution enshrines the right to life and personal liberty as a means to protect it, the said right was not conferred by the State on the citizens in the first place. The Constitution did not create this right. It existed even before the Constitution existed. Each human was born with these rights, as per the theory of natural law. Thus, when the State did not create the right to life and personal liberty, they also did not have the authority or power to suspend this right either.
For a democratic nation to have suspended the right to life and personal liberty of its citizens, while also not allowing them any means to enforce the same, is an oxymoron of the highest degree. A country cannot claim to be democratic and then deprive its people of their basic human rights without any reasonable or legal justification. Unfortunately, this is what happened in the present case and the Supreme Court of India failed to highlight the injustice of the same. Instead, the Supreme Court upheld the validity of the executive actions taken during the emergency period, completely overlooking the harm that came to the citizens because of it.
Prioritising the interest of the State above the citizens’ rights and safety is not something one would expect from the Supreme Court, especially since the judicial system is also famously acclaimed as the ‘guardian of the Constitution’ and has a history of supporting citizens through judicial activism. The present judgement not only dismissed the natural rights of the citizens, but also compromised the doctrine of the rule of law.
Furthermore, Article 358 was broader in nature, with the fundamental freedoms under Article 19 being suspended as a whole, while Article 359 did not suspend any fundamental right. The primary purpose of Article 359(1) was to prohibit the referral to the Supreme Court under Article 32 to enforce certain fundamental rights. This constitutional prohibition has no effect on the enforcement of the common law and statutory rights to personal liberty before the High Court under Article 226 of the Constitution.
Even though Article 359(1) of the Indian Constitution grants the executive almost unlimited special powers to suspend Part III of the Constitution temporarily for the period of emergency, it does not affect the essential element of the sovereignty of the separation of powers, which leads to a system of checks and balances to limit the power of the executive. The suspension of fundamental rights were not intended to tip the balance in favour of the executive, to the detriment of the citizens of the country.
In addition to that, the presidential orders imposed are valid only for fundamental rights and do not extend to natural law, common law or legal rights. Applying the same is both overreaching and out of the scope of any order that can be made by the State.
It is also to be noted that in many places, the judgement equates the State and the executive as the same, especially with regard to emergency provisions. This equation of State and executive is very wrong and flawed. The executive is only one organ of the government that forms the State. Interpreting the executive as the sole representative of the State is both constitutionally invalid and arbitrary in nature.
The only consequence of the suspension of fundamental rights or their application is that the legislator can create laws that go against these fundamental rights and that the executive can apply them. This should, at no time, be interpreted as the right of the executive to violate court decisions and previous legislative mandates. A proclamation of emergency should not be used as an excuse to violate the fundamental rights of the citizens at leisure.
Moreover, the executive can only act for and against its citizens within the limits set by the laws in force. Article 352 or the proclamation of emergency does not in any way increase the scope of the executive powers of the State in relation to what is enshrined in Article 162 of the Constitution.
Finally, the State and its agents have the right to arrest only if the alleged act of detention falls within the scope of Section 3 of the MISA and all the conditions that it contains are fulfilled. If a condition remains unfulfilled, detention is considered as beyond the powers of that Act. The most important objective of constitutionally entrenched constitutional rights is to make them enforceable against the State and its agencies through the courts.
In the present case, the High Courts of several states complied with the Supreme Court’s order in silence. The Supreme Court had silenced them and they had no option but to comply and follow. This day was later called ‘the darkest day of Indian democracy’ and rightly so. There are several similarities between this trial and Hitler’s mode of operation and his accession to power. The emergency proclamation, at the request of Indira Gandhi, suspended the elections and limited fundamental rights.
The most significant example in the history of a ‘rule by decree’ is the Reichstag Decree on the Fire of 1933. Adolf Hitler convinced German President Hindenburg to issue a decree indefinitely suspending all basic civil rights. This paved the way for the suppression of opposition by the Nazis and the government of a single party of the Third Reich.
Niren De, the Attorney General of India from 1968 to 1977, had calmly answered the uncomfortable questions put forth by Justice Khanna when the comparison with the Nazi holocaust was brought up. He gave the example of another case where Chief Justice A.N. Ray almost reprimanded the inmates’ lawyer who had built Nazi gas chambers to prove their statements. He argued that any government order declared during the emergency cannot be challenged and comparing it to the holocaust is absurd.
As per the words of Justice H.R. Khanna, pre-trial detention and detention without trial are two rights that are fundamentally opposed by those who support and cherish the right to personal liberty. However, all three are important, even when they are contradictory in nature. Thus, to strike a balance, the Indian Constitution includes provisions that explicitly deal with preventive detention and the safeguards against it to prevent any abuse of this power. These provisions empower the detainee to certain rights and minimise the severity of such detentions. Despite these measures, the balance between the two opposing viewpoints of the security of the State and the personal freedom of its citizens is yet to be achieved.
Even in the absence of Article 21 in the Indian Constitution, the State does not have the power or authority to deprive an individual of their right to life or personal liberty without the authority of law or the procedure prescribed by it. This is one of the crucial parts of the doctrine of the rule of law, without which no nation can call itself democratic or civilised. Any authority with such power would become absolute and arbitrary in nature. Without the sanctity of life and freedom, there will be no distinction between a lawless society and a law-governed society.
Significance of the case
As mentioned earlier, this judgement came as a regret to many of the members of its constitutional bench, especially since it turned out to be a black spot in judicial history after reducing the scope and importance of the fundamental rights enshrined in the Indian Constitution. The present judgement received a lot of criticism for going against the previous decisions of the High Courts or various Indian states, especially since four out of the five judges had held it in the favour of the State, despite the blatant violations of basic human rights.
Even the single dissenting opinion presented by Justice Khanna did not play much in his favour. Since the dissenting view was phrased strongly against the State due to the suspension of Article 21 and their abuse of the provisions for preventive detention, it caused an uproar that significantly affected his career. The records indicate that the night before the announcement of the judgement, he informed his sister that he had made a decision and that he knew that it would cost him the seat of the Chief Justice of India.
The other four members of the constitutional bench, Chief Justice of India A.N. Ray, Justice Beg, Justice Chandrachud and Justice Bhagwati could not avoid the unscrupulous favour of the government in power. Justice A.N. Ray, with his controversial appointment as Chief Justice of India by Indira Gandhi, replacing three high-ranking judges, revered the same ground on which she walked.
Meanwhile, Justice Bhagwati had lifted the torch of individual liberty, only to fail to stand for it when it was needed the most. Later in 2011, he expressed his regret in going with the majority opinion in the A.D.M Jabalpur case, stating that the judgement of the aforesaid case was short-sighted and went on to apologise for it. Records also indicate that in 1979, after Indira Gandhi came to power, he wrote her a letter in which he expressed his admiration for her iron will and asked her to continue her reign with the same will. He later became the president of the Supreme Court of India in 1985 and held the office as Chief Justice for eighteen months.
Ironically, once the emergency ended and so did the reign of Indira Gandhi, the stance of the Supreme Court also seemed to change. The priority was again given to the civilian rights, and most judges, as discussed above, expressed their change in opinion with regard to the present habeas corpus case. Due to the change in opinion coinciding with the change in the political scenario in India, the majority of judges in the present case were accused of encouraging and facilitating the State apparatus by the public.
This was especially because of the fact that the rationale behind the judgement of the A.D.M Jabalpurcase could be boiled down to all the rights enshrined in the Indian Constitution being a product of positive law, rather than a mere legal acknowledgement of the already existing natural law. By not recognising the right to life and personal liberty as a natural right that cannot be alienated, positive law was given the upper hand, which in turn increased the power of the State even more.
A.D.M. Jabalpur vs. Shivkant Shukla stands to be one of the best examples of the conflict between positive law and natural law, especially during circumstances where the security of the State and citizens was in question. During special situations like proclamation of emergency, where the nation and all its power needs to be centralised, some natural laws are suspended for the security and stability of the State.
To be explained briefly, natural law is a philosophical theory that argues that certain rights are inherent in nature and cannot be alienated from human existence. These natural rights are the rights that an individual is born with and are independent of other man-made laws. They are universally acceptable regardless of where the individual is born. No one can deprive them of their natural rights without due process. The right to life and personal liberty is one of such rights.
Meanwhile, positive law refers to all the laws made by the government or any other authority to regulate its internal and external affairs. All statutory laws and common law principles come under this type of law. Since these laws originated and were made by humans, they are also known as man-made laws.
Provisions like the proclamation of emergency, come under positive law while freedoms like the right to life and personal liberty are part of the natural law. The A.D.M Jabalpurcase was held against natural law, stating that during special circumstances like the emergency, fundamental rights can be suspended.
It should be noted that this judgement was made with the view that positive law is the foundation of the State and acts as a framework for the administration and governance of internal affairs. Unlike natural law, which is more abstract in its theory, positive law is more practical and direct in its usage. Without positive law, it could be hard to handle the nation, especially during an emergency.
Based on this view, the Supreme Court was of the opinion that natural laws need to be overshadowed to maintain the positive law for the stability and security of the State. Unfortunately, the proper balance that was needed between the two laws was not found and that is what made many people criticise the judgement for years after it was passed.
In fact, the A.D.M Jabalpur judgement was later overruled by the landmark case of K.S. Puttaswamy vs. Union of India (2017), which was also delivered by the Supreme Court of India with a nine-judge constitutional bench. In this case, the retired judge, Justice K.S. Puttaswamy filed a petition in the Supreme Court regarding privacy concerns over the Aadhar card database that required one to provide details that were unrelated to the need for an Aadhar card. Details such as the sexual orientation of a person, which is an essential part of one’s privacy were needed for the Aadhar Project to access the unique 12-digit identification number. This was seen as a privacy concern for many and the Supreme Court agreed with the same.
In Paragraphs 533 and 573 of the aforesaid judgement, the dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur vs. Shivkant Shukla was upheld and reiterated while emphasising that Article 21 is an integral part of the fundamental rights and it cannot be alienated or suspended even during proclamation of emergency.
Despite being overruled, the A.D.M Jabalpurcase still holds a lot of significance in judicial history, as it showcases the conflict between positive law and natural law, as well as highlights how the judiciary can also be affected by political influence. The waves brought on by this judgement, along with its history, now act as a lesson for those who study law and would make, implement or interpret them in the future.
The biggest influence brought by this case was the introduction of the 44th Amendment to the Constitution in 1978. This Amendment Act was introduced with the primary goal of amending and removing various provisions added to the Indian Constitution through the 42nd Amendment Act enacted in 1976. The 42nd Amendment was introduced during the emergency period, when the executive had complete control over the internal affairs and that had led to a lot of changes being brought in the Constitution, which could lead to misuse and arbitrary actions. Thus, to resolve the same, the 44th Amendment was introduced.
The 44th Amendment Act also brought changes to the emergency provisions in the Indian Constitution, adding further safeguards for the protection of fundamental rights even during the emergency period. It ensured that the right to life and personal liberty under Article 21 and the right to protection in respect of conviction for offences under Article 20 would be applicable even during the emergency and would never be suspended again in any circumstance.
The most relevant changes introduced by the 44th Amendment Act are as follows:
The term “internal disturbance” used in Article 352(1), as a reason for the proclamation of emergency was replaced with “armed rebellion”, by the 44th Amendment to decrease the influence of the executive by wide interpretation of the vague terminology. Any internal disturbance without arms or not amounting to any armed rebellion would not stand as a ground for the proclamation of emergency anymore.
This amendment also introduced the prerequisite of a written communication given by the Union Cabinet to the President, for the proclamation of emergency. This was done so as to increase communication between the President, the Prime Minister and the other ministers before an emergency was declared under Article 352(3).
Under Article 352(4), any emergency proclamation without the approval of both the Houses of Parliament (Lok Sabha and Rajya Sabha) within one month of its declaration, would cease to operate. A vote of a special majority is needed from both houses for the resolution to pass.
Both the Lok Sabha and the Rajya Sabha need to re-approve the resolution for an emergency, every six months, for its continuity. In case that does not happen, the emergency would expire and cease to operate under Article 352(5). A vote of a special majority is needed from both Houses for the resolution to pass.
Under Clauses (7) and (8) of Article 352, the proclamation of emergency can be annulled by the Houses of the Parliament with a vote of a simple majority.
The right to life and personal liberty under Article 21 and the right to protection with respect to conviction for offences under Article 20 cannot be suspended even during the proclamation of an emergency.
Further, any preventive detention made by the State cannot be extended beyond a period of three months, unless the Advisory Board under Article 22(4) of the Indian Constitution is satisfied with the grounds for such detention and approves of it.
Article 368 of the Constitution was amended to ensure that any additions or changes brought in the Constitution by any amendment acts were within the parameters of the basic structure doctrine and if any changes were to be made in the basic structure of the Constitution, then it is to be approved by both the Houses of the Parliament with a special majority.
Thus, with the introduction of these changes, the 44th Amendment strengthened the presence of fundamental rights even during an emergency, while maintaining the balance of power between the interests of both the State and its citizens, without compromising on either. The State can still proclaim an emergency and make preventive detentions, but within limitations and with approval from the Parliament at regular intervals. On the other hand, citizens of India can still enjoy their right to life and personal liberty, as well as their right to protection against conviction for certain offences, without fear of any suspension or unjustified restriction.
Conclusion
Freedom of life and personal liberty is one of the most essential fundamental rights, without which no nation can stand to be called democratic and no individual can achieve their complete potential. Suspending such a right can lead to misuse of authority and tyranny, as observed through the history of the present case.
While it is true that in a situation of national emergency due to internal or external conflict, the State interest needs to take priority, it does not mean that it should completely override even the basic rights of the citizens of the State. A balance should be maintained between the two, where the State is given the power needed, while also protecting the citizens and their essential fundamental rights.
The judgement of A.D.M. Jabalpur vs. Shivkant Shukla (1976) stands to be one of the most controversial judgements passed by the Supreme Court in India, especially because of the narrow interpretation of the scope of fundamental rights. In an interview, Judge P.N. Bhagwati admitted that the decision of the Supreme Court in the aforesaid case was incorrect and pleaded guilty to the same. His reasoning for supporting the majority opinion of Chief Justice of India A.N. Ray, Justice M. Hameedullah Beg and Justice Y.V. Chandrachud was persuaded by his colleagues and admitted that it was an act of weakness on his part. He stated that it was against his conscience, and that this judgement was not his own.
To know more about the A.D.M. Jabalpur vs. Shivkant Shukla(1976) case in brief, please refer to the video below:
https://www.youtube.com/watch?v=PlqlEqHja
Frequently Asked Questions (FAQs)
What is positive law and natural law?
Natural law is a type of philosophical theory according to which all humans are born with certain rights or inherit certain rights from nature, like the right to life. It states that all rights and obligations in law should be based upon basic morals and ethics. Meanwhile, positive law refers to the statutory laws made by the authority (State, government or otherwise) often based on ethics and natural laws. This type of law is also known as the ‘man-made’ law.
Who can suspend fundamental rights?
Fundamental rights can be suspended by the President of India, during the period of emergency as per Article 359 of the Indian Constitution.
Which fundamental rights cannot be suspended?
After the declaration of emergency, all fundamental rights except the right to life and personal liberty under Article 21, and the right to protection with respect to conviction for offences under Article 20. However, all the other fundamental rights, such as the six freedoms under Article 19 are suspended by Article 358 of the Indian Constitution.
Why was the judgement in A.D.M. Jabalpur vs. Shivkant Shukla overturned?
The A.D.M Jabalpurcase has been acknowledged as one of the black spots of Indian judicial history, by many Jurists and Judges, including those who were a part of the constitutional bench during its judgement. The failure to protect and broaden the scope of Article 21 of the Constitution in the face of the interests of the State, led to the judgement being overturned in 2017, in the landmark case of K.S. Puttaswamy vs. Union of India, where the Supreme Court acknowledged that the right to life and personal liberty could not be suspended at all.
References
M.P. Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, Fifth Edition 2008.
M. Seervai, Constitutional Law of India, Universal Law Publishing Co., Reprint 2013.
M. Bakshi, The Constitution of India, Universal Law Publishing Co., 2014.
Dr J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad, 37th edition, 2001.
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Generally, there are two types of properties under Hindu law. The ancestral property and separate property. Ancestral property is divided by the rules of coparcenary and the rule of partition. In contrast, separate property is divided by the rule of succession and the rule of inheritance. Succession can occur in two modes: intestate succession, which means succession without the help of a Will, and testamentary succession, which means succession with the help of a Will. In general term succession means the transfer of property from one person to another. The Hindu Succession Act of 1956, is a concise act that deals with all the rules and issues related to succession and inheritance under Hindu law. This act includes provisions for the equal distribution of property among male and female heirs.
This article mainly focusses on disqualification from succession under the Hindu Succession Act. According to this act, some provisions deal with the qualification and disqualification of heirs to inherit the property. This disqualification helps in the proper disposition of the property without any discrimination or unlawful means. By doing so, it can be ensured that the property is given to the right heirs.
Disqualification from succession
The Hindu Succession Act talks precisely and uniformly about the conditions under which a person would be disqualified from becoming a prominent heir to the property. Sections 24-28 deal with the disqualification of heirs.
Section 27 of the Hindu Succession Act, 1956, deals with the consequences of disqualification under the Act. It provides that if a person is disqualified under the Act, whether by reason of unsoundness of mind, felony, or any other cause, then for the purposes of succession, the property of the disqualified person shall be deemed to have been held by him as a full owner, and the succession thereto shall take place as if he had died before the succession opened.
This means that a disqualified person is treated as if they had died before the succession took place. As a result, they are not entitled to inherit any property under the Act, and their share of the property will be distributed among the other heirs of the deceased person.
The purpose of Section 27 is to prevent disqualified persons from benefiting from their wrongful acts or from taking advantage of their mental or physical disabilities. For example, a person who has been convicted of a felony may be disqualified from inheriting property under the Act. This is because the legislature believes that allowing such a person to inherit property would be contrary to public policy.
The disqualification under Section 27 is not absolute. A person who has been disqualified may still inherit property if they are later restored to competency or if they are pardoned by the President of India. However, in order to do so, they must file a petition with the court and prove that they are now competent to manage their property.
Section 27 of the Hindu Succession Act is an important provision that helps to ensure that property is distributed fairly and equitably among the heirs of a deceased person. It also serves to protect the public from disqualified persons who may be unable to manage their property or who may pose a danger to others.
Illustration
If a person A died, leaving behind his widow and the widow of a predeceased son, who got remarried before A died, then all the property would be given to the widow of A and not to the widow of a predeceased son, as she got remarried. Now she is considered deceased and will have no right to inherit A’s property.
Disqualification by widows’ re-marriage
Section 24 of the Hindu Succession Act, 1956, dealt with the consequences of a widow’s remarriage on her entitlement to inherit in cases of intestate succession. The provision stated that a widow who remarried after the death of her spouse would forfeit her right to inherit any property from her deceased husband’s estate. This provision was criticised for being discriminatory and gender-biassed, as it placed an unfair burden on widows who chose to remarry.
The provision was repealed by the Hindu Succession (Amendment) Act, 2005, which recognised evolving societal norms and sought to promote gender equality. The repeal of Section 24 was a significant step towards ensuring that widows are not deprived of their inheritance rights based solely on their marital status. This amendment aimed to uphold the fundamental rights guaranteed under Articles 14 and 21 of the Indian Constitution, which provide for equality before the law and protection of life and personal liberty, respectively.
By repealing Section 24, the Hindu Succession (Amendment) Act, 2005, sought to address the historical injustices faced by widows and to provide them with the same inheritance rights as their unmarried counterparts. This amendment recognised that a woman’s right to inherit property should not be contingent on her marital status and that widows should be treated equally in matters of succession.
The repeal of Section 24 has had a positive impact on the lives of many widows in India. It has empowered them to make decisions about their lives, including the choice to remarry, without fear of losing their inheritance rights. The amendment has also contributed to promoting gender equality and social justice in India.
Prior to the Amendment Act of 2005, Section 24 disqualified three women from inheriting the intestate property if, at the time of succession, they had remarried, which were as follows:
Son’s widow
Son’s son’s widow
Brother’s widow
Kasturi Devi vs. Deputy Div. Commissioner (1976)
This case questions whether remarriage would bar a mother from succeeding as a son’s heir. The court held that the widowed mother and widowed stepmother are not disqualified from inheritance even if they have remarried. After the Hindu Succession Amendment Act, 2005 Section 24 was deleted, but the underlying principles remained unchanged. The widow would not be entitled to the succession of the intestate property if she had remarried before the succession took place. This is because, after remarriage, a widow is considered a member of her new husband’s family and therefore she gets the right to inherit in her new family; the right to inherit from the previous family is abolished. However, if she remarries before the death of her first husband, then the second marriage would be void and she would be considered a qualified heir.
Disqualification by murder
Section 25 disqualifies a person from becoming a qualified heir to the succession in two ways:
An heir murdered or abetted in the murder of the person whose succession is at stake.
An heir murdered or abetted in the murder of someone else in furtherance of the succession.
The heir would be disqualified from inheriting the property of the person who was murdered or any other property they have right over. They would be treated as dead at the time when succession would take place.
Here the most important phrase to emphasise is “furtherance of the succession,” which means the act of murder and abatement is done with the motive of acquiring the property of succession, then that person is disqualified. Whereas, if any act has taken place unknowingly or without any motive of the heir, then that heir would not be disqualified from succession and would be a valid heir to inherit the succeeded property.
Illustrations
X and Y are both heirs to the property of A. X murdered Y to become the only heir to the property. Here, X would be disqualified from becoming the valid heir to the property of succession at stake.
X and Y are brothers; they both made a plan to murder their father and inherit all the property of their father. Here, both X and Y would be disqualified from inheriting the property.
X, Y, and V are heirs to A’s property. X abetted Y for murdering A and Y murdered A. Here X and Y both be disqualified as X abetted the murder and Y did the murder. The only valid heir to inherit would be V who was not involved in any acts.
Vellikannu vs. R Singaperumal (2005)
In the intriguing case of Vellikannu vs. R. Singaperumal (2005), the Supreme Court of India grappled with a profound legal question: can the descendants of a person who committed murder inherit the property of the victim? The case presented a complex scenario where the son, driven by greed, brutally murdered his father with the sole intention of inheriting his property. However, in a just and morally sound decision, the court ruled that both the son and his descendants would be disqualified from inheriting the property.
The facts of the case are as follows: a son, consumed by a desire for wealth, plotted to eliminate his father, who owned substantial property. In a heinous act, the son took his father’s life, believing that he would then be able to claim his inheritance without any obstacles. However, the law had other plans in store for him.
The son’s wife, aware of her husband’s crime, filed a suit in court, seeking her share of her father-in-law’s property. The legal battle ensued, and the Supreme Court had the daunting task of determining whether the son’s descendants should be allowed to inherit the property despite their ancestor’s heinous act.
The court, in its wisdom, recognised the gravity of the situation and the moral implications of allowing the son and his descendants to benefit from the crime. It held that the son’s act of murder not only disqualified him from inheriting the property but also extended this disqualification to his descendants. The court reasoned that allowing the descendants to inherit would be tantamount to rewarding the son’s crime and sending the wrong message to society.
The Supreme Court’s decision in Vellikannu vs. R. Singaperumal serves as a potent reminder that the law will not tolerate those who seek to profit from their own wrongdoing. The court’s ruling upholds the principles of justice, equity, and morality, ensuring that the consequences of such heinous acts are not passed down through generations.
Smt. Janak Rani Chadha vs. State (NCT of Delhi) and Anr. (2007)
In this case, the husband was found guilty of murdering his wife. The court disqualified him under Section 25 of the Hindu Succession Act from inheriting his wife’s property. The court further said that the husband’s parents are also disqualified from inheriting the property as they are in close relation to the murderer.
Disqualification by conversion
Section 26 of the Hindu Succession Act deals with disqualification on the basis of conversion. An heir who, by conversion to a different religion or ceased to be Hindu, would not be disqualified from inheriting the property. The conversion to any other religion would not impact the right of inheritance of that Heir.
However, the children of such an heir after such conversion and their descendants shall be disqualified. There is a condition, which is that unless such children or descendants are Hindu at the time when the succession takes place, they would not be disqualified and would be considered a valid heir to the property.
After the conversion, the person would be governed by the laws of that particular religion to which he or she had been converted and that particular religion’s personal law would be applicable while dealing with the process of inheritance.
Illustration
X is an heir to A’s property who, before the succession, converted to a non-Hindu religion. Here, the conversion of X would not disqualify X from being a qualified Heir to inherit the property from A.
A died living behind X and Y’s predeceased son YS. Y before his death converted to a different religion. So, the property of A would be inherited by X only not by YS as he is a disqualified descendent.
Balchand Jairam Lalwant vs. Nazneen Khalid Qureshi (2018)
Balchand Jairam Lalwant vs. Nazneen Khalid Qureshi (2018) was a landmark case in India that addressed the issue of whether an heir who converted to a different religion would be a valid heir to inherit property.
In this case, Nazeem Qureshi, the daughter of a Hindu father, converted to Islam after her father’s death. When her father’s property was being distributed, Nazeem claimed her right to inheritance. However, her Hindu relatives argued that under Section 26 of the Hindu Succession Act, 1956, she was disqualified from inheriting the property because of her conversion.
The case went to court, and the Bombay High Court ruled in favour of Nazeem. The court held that, while Nazeem’s descendants would be disqualified from inheriting the property under Section 26, Nazeem herself was not disqualified. The court reasoned that Section 26 was intended to prevent the fragmentation of Hindu joint family property and that Nazeem’s conversion did not affect her status as a Hindu for the purposes of inheritance.
The Supreme Court upheld the Bombay High Court’s decision, and the case set an important precedent for the rights of religious converts in India. The decision clarified that individuals who convert to a different religion do not automatically lose their right to inherit property. However, it is important to note that the decision only applies to cases involving the inheritance of separate property. In cases involving the inheritance of joint family property, the rules of succession may be different.
The Balchand Jairam Lalwant vs. Nazneen Khalid Qureshi case is a significant legal precedent that has helped to protect the rights of religious converts in India. The case has also helped to promote religious tolerance and understanding in the country.
Disqualification by disease, deformity, and unchastity
Section 28 of the Hindu Succession Act states that no person shall be disqualified on the basis of any disease, deformity or any other similar ground. They would be valid and qualified heirs to the property. This rule applies to both testamentary and intestate successions.
Ratti Ram vs. Smt. Basanti and Ors. (1986)
Ratti Ram vs. Smt. Basanti and Ors. (1986) is a landmark case in Indian jurisprudence that challenged traditional notions of inheritance and property rights. The court’s ruling in this case had profound implications for the rights of women and individuals with disabilities in India.
The case involved a dispute over the inheritance of ancestral property. The plaintiffs, Ratti Ram and his brothers, claimed that their sister, Smt. Basanti, was disqualified from inheriting their father’s property due to her physical disability and alleged unchastity. They argued that, according to Hindu law and custom, a daughter with a disease or deformity, or who had engaged in immoral conduct, was not entitled to inherit property.
However, the court rejected these arguments and held that disease, deformity, and unchastity are no longer grounds for disqualification from inheriting property. The court recognised that these traditional notions of inheritance were discriminatory and violated the fundamental rights of women and individuals with disabilities.
The court’s decision in Ratti Ram vs. Smt. Basanti was a significant step towards gender equality and the protection of the rights of persons with disabilities in India. It affirmed the principle that all individuals, regardless of their physical or mental abilities or moral standing, have full and equal rights of inheritance as compared to any other heirs to the property.
This landmark judgement has had a lasting impact on Indian inheritance law and has been cited as a precedent in subsequent cases involving the rights of women and persons with disabilities. It has also contributed to broader efforts to promote inclusivity and non-discrimination in Indian society.
Conclusion
The Hindu Succession Act of 1956 provides an uncomplicated way to dispose of one’s property without creating any unnecessary problems on either part of the parties to succession. The act has also undergone some amendments, which have amended the provisions as per societal development and changes. The grounds for disqualification of heirs provide a balance of moral and lawful conduct while inheriting the property. This also maintains the principle of non-discrimination on any of the grounds, whether it be gender, religion, or any other personal ground. It also strictly forbids the expansion of the provision other than the written text in the act. This also prevents giving any type of right or privilege to the person who has committed a heinous crime. Ultimately, all these provisions give a transparent way as to who will be disqualified from inheriting the property so the property is inherited by the qualified heirs without any conflict or disagreement.
This article is written byNavya Jain. This article discusses the case of the Pharmaceutical Society of Great Britain vs. M/s Boots Cash Chemists (Southern) Ltd. The article concerns itself with the detailed facts of the case, issues raised, the legal concepts which are involved in the case, the judgement along with the rationale behind the judgement and analysis of the case. The article indulges into the meaning and essentials of offer as a prerequisite of constituting an agreement. Thereafter it explains the distinction between offer and invitation to offer. It also illustrates the distinction with the help of various cases. It educates the reader about various types of offers and how each one of them varies with the aid of illustrations.
Table of Contents
Introduction
Contracts and contractual relations are deeply embedded in society. Indian Contract Act, 1872, (hereinafter mentioned as “the Contract Act”) is the governing law for all the contractual relations in India. This Act is based on the principles of English common law. This Act lays the framework governing different types of contracts such as those related to sale, breach of contracts etc.
An offer is the first step towards creation of a legal relation, it is important to understand the nature of the offer. Sometimes, a statement may appear to be an offer, but on the contrary it is actually just an informative statement made with the intent of dispensing information towards the targeted audience. Thus, it becomes crucial to be able to distinguish between an offer and an invitation to offer.
The case at hand is squarely concerned with the concept of offer and invitation to offer. With the detailed analysis of the case, we shall learn to distinguish between an offer and an invitation to offer. The case discusses how Lord Justice Somervell, Lord Justice Birkett, Lord Justice Romer iterated the essentials of an invitation to offer. Apart from that we shall also examine the concept with the help of the Indian counterpart wherein we discuss the concerning provisions as well as detailed case laws. We shall observe that the Indian counterpart concedes with the English counterpart in this context.
Details of the case
Plaintiff: Pharmaceutical Society of Great Britain
Defendant: M/s Boots Cash Chemists (Southern) Ltd.
Court: Court of Appeal (UK)
Bench: Lord Justice Somervell, Lord Justice Birkett, Lord Justice Romer
Date: 5th february 1953
Citation: [1953] 1 QB 401
Facts of the case
The case arose as a matter of appeal from the former bench. The matter concerns one of the basic tenets of the contractual law, i.e., offer and acceptance. The plaintiff, Pharmaceutical Society of Great Britain was established under the aegis of the Royal Charter whose main duty was to ensure the sale of the poisons as per the Pharmacy and Poisons Act, 1933 (hereinafter referred to as the ‘Act’). The defendant, Boots Cash Chemists (Southern) Ltd. carried on a retail business of selling drugs at their shop premises.
Self service system was introduced in the store. The drugs, along with their prices, were displayed on the shelves and customers were permitted to pick the drugs of their choice off the shelves directly. Having chosen the desired products, the customer could take it to the billing counter and have it billed. The counter was supervised by a registered pharmacist, who had the authority to refrain any customer from removing any drug from the premises, if deemed fit.
However, the customers were unaware of the existent authorization. With this factual background in mind, a sale was effected on 13th April, 1951. The sale consisted of two drugs which were duly purchased following the ‘self service system’ illustrated above established by the defendants. The said drugs consisted of certain poisons the sale of which was considered to be unlawful under Section 18(1)(a)(iii) of the Act, unless it is effectuated by, or under the supervision of the registered pharmacist.
As per Section 25 the Act, it is the duty of the Pharmaceutical Society of Great Britain to enforce Part I of the Act dealing with the status of the registered pharmacist and secure compliance of the provisions related to the registered pharmacist. Part II of the Act refrains the sale of the poisons mentioned under Part I unless it is sold by an authorised seller or the sale is effectuated under the supervision of the registered pharmacist. The Pharmaceutical Society of Great Britain objected to this new system of self service. The Trial Court’s decision was in favour of the defendant so the Society preferred an appeal.
Issues raised
The questions for consideration before the Bench is as follows:
Whether the aforementioned transaction is considered to be effectuated under the supervision of the registered pharmacist?
When is the sale of the product considered to be completed? Whether it is before or after the prospective customer has paid the money after having the product scrutinised by the pharmacist?
Arguments
Arguments advanced by the plaintiff
The plaintiff argued that the purchase is said to be complete when the customer places the product into his/her basket after taking the tour of the available options. It was argued that the displaying of goods was an offer and a customer, upon choosing a drug, accepts the offer. It was also pointed out that the defendant had violated Section 18 (1) of the Act as there was lack of supervision by the Chemist (defendant). They further argued that the lower court refused to indulge with the question whether or in what circumstances, the registered pharmacist would have the power to refuse the sale of the drug.
Arguments advanced by the defendant
The defendants argued that the sale is said to be executed only when the payment is made at the counter. As for the role of the pharmacist, the pharmacist is required to supervise the sale of the drug at the counter at the time of billing and the same was present at the time of alleged incident.
Judgement of the case
The Hon’ble Court did not find any merit in the said appeal and dismissed it. Lord Justice Somervell conceded with Lord Chief Justice’s reasoning in the former petition. In the opinion of Lord Justice Somervell, the drugs in question are not dangerous drugs which cannot be obtained without a doctor’s prescription. These drugs contain very small proportions of poison. Moreover, many of them also contain instructions as to appropriate dosage as well. While evaluating the question regarding the completion of the purchase, Lord Sommerville opined that a purchase is not considered to be complete until the customer expresses intents to purchase the product and the same is met by the shopkeeper or someone on his/her behalf. He concludes that the self service system is mainly devised for the convenience of the customers to facilitate them in choosing and substituting their products conveniently.
Similarly, Lord Justice Birkett opined that there is not much difference in the nature of transaction just because it is a self service store. Every product that the customer picks up off the rack is an offer by the customer to buy. As per the opinion of Justice Birkett, the sale was duly made under the supervision of the registered pharmacist.
Lord Justice Romer, refused to accept the argument that any and every article picked up by the customer would turn into an effective sale. In such a scenario, the customer would never be able to exchange any article before billing it. Hence, the court failed to find any merit in the arguments of the defendant, thereby dismissing the appeal.
Rationale behind this judgement
All three judges gave their independent yet concurring opinion with respect to the concerned questions. All the judges examined the question of invitation to customers and opined that the sale is not completed until the shopkeeper, seller, someone on behalf of the seller accepts the offer. Until or unless the customer has not paid for the product, it is not possible to conclude that the sale has been completed. Neither can such a product be substituted or replaced with the other product. A sale is not deemed to be effectuated until the buyer’s offer to buy is executed with the payment of sum due against the product.
The Court of Appeal held that it would be wrong to conclude that merely picking up an article from the shelf is capable of compelling the customer to pay for the same. Picking up a product from the shelf and placing it in the basket merely means that the customer is interested in purchasing the product. It is absolutely up to the will of the customer to retain it in the basket or substitute it with another product. Up until the payment is made, it is merely considered an offer on behalf of the customer to purchase the product. It is only when the payment is made and accepted, only then the sale shall be deemed to be completed.
Applying the principle enunciated above, in the case at hand, the sale was deemed to be effectuated only after the payment. With respect to the involvement of the pharmacist, it was concluded that the above transaction was rightfully concluded under the supervision of the registered pharmacist.
Thus, the appeal was dismissed with cost.
Analysis of Pharmaceutical Society of Great Britain vs. Boots Cash Chemists (Southern) Ltd. (1953)
The stepping stone for any contractual agreement is making a proposal/offer. Every agreement is based on certain basic elements, such as a valid offer, its acceptance, capacity to contract and legal consideration for the same. A contract must be made for a legally enforceable intent. It must be entered into by the competent parties for a lawful object. The competent parties must give their consent in order to enter into a valid agreement. Such consent should be free, voluntary, devoid of any form of coercion, undue influence, misrepresentation, mistake of fact, or law. In any case where either of these given elements are missing, such an agreement shall not be considered to be a valid agreement.
The case at hand succinctly illustrates the difference between offer and invitation to offer. This can be observed in several cases. For instance in Harvey Anor vs. Facey & Ors (1893)where the plaintiff telegraphed the defendant seeking “will you sell us the Bumper Hall Pen? Telegram the lowest price.” In response, when the defendant communicated the price to the plaintiff, stating “Lowest price for Bumper Hall pen, £900,” it was deemed that this was not an offer made by the defendant. The telegram only solicited the defendant’s response with respect to their intent to sell it. The resultant response by the defendant was merely an answer to the query and not an offer per se. Thus, the court concluded that there was no valid contract between both parties.
Another notable case in this context is the famous Carlil vs. Carbolic Smoke Ball Company [1893] 1 QB 256, wherein the defendant company issued an advertisement stating that it would reward the person who would catch influenza even after using their medicine as per the prescribed instructions. Mrs. Carlil, the plaintiff, used the medicines as per instructions, caught influenza, and thereby sued the company. The defendant argued that the plaintiff had not communicated the acceptance of the offer; thus, there was no valid contract between the parties. In this context, the court clarified that the advertisement by the defendant company was a general offer and not an invitation to offer.
Hence, when the plaintiff purchased the medicine and consumed it as per the prescribed directions, the offer was considered to be accepted. Thereby creating a valid contract between both parties. The fact that the plaintiff suffered from influenza even after using the medicines as per the directions makes the defendants liable for compensation.
A clear distinction between offer and invitation to offer was demarcated by the House of Lords in the case of Gibson vs. Manchester City Council [1979] UKHL 6. As per the factual matrix, the City Council was selling the council houses under a policy. Plaintiff also applied for a house under the policy seeking details of price and the mortgage term. He received a response from the Corporation stating, “The corporation may be prepared to sell the house to you..”. Resultantly, Gibson completed the application and sought possession.
However, due to a change in the ruling party, the contract could not be executed. So, Gibson sued the council stating that there was a valid contract between the two. The House of Lords rejected the argument, stating that the corporation had merely made an invitation to offer. It was the plaintiff who made the offer by filing the application which was yet to be accepted. Hence, the council was not in breach of any contract.
Understanding offer and invitation to offer in Contract Law
Section 2(a) of Indian Contract Act, 1872
The case revolves around the concept of an offer/ proposal as an essential prerequisite for any contract. The term “proposal” has been defined in the Section 2(a) of the Contract Act, it refers to the expression of willingness of one person to do or abstain from doing something and seeking consent of the opposite party to concede with the same. When such a proposal becomes accepted by the party to whom the proposal is made, it then becomes a promise. The person who makes the proposal is called the promisor, and the person who accepts the promise is called the promisee. Some of the key considerations for a valid offer are as follows:
Offer must be made for a lawful object
For every promise made, it must be backed by a lawful object and consideration, for it to become a valid agreement. It means that the contract must not be forbidden by law or defeat any provision of law. Neither should it involve or imply to injure any person or property of another. The agreement immoral in nature or against public policy shall also be deemed void.
Offer must be made for a lawful consideration
By lawful consideration, it means that the consideration must be clear, certain and definite. Uncertainty or indefiniteness in terms of consideration shall invalidate the agreement.
Intent to create legal relations
An offer or a proposal cannot be regarded as a valid offer unless it is specifically intended to create legal relations.
Offer must be clearly worded
The offer must be definite and clearly worded. Vague or loosely worded offers will lead to invalidation of the agreement. The offer must be clearly and completely communicated to the party to whom it is made.
Offer must not contain such a term that requires non compliance
As an essential ingredient to form a valid offer, it is desirable that the offer must not comprise a term or a condition requiring negative action or non compliance to communicate acceptance of the offer. For instance, A makes an offer to B stating that “I shall sell my house to you for Rs.4000 if you fail to reply to the offer.” in this scenario, A is demanding B to make a negative action so as to communicate acceptance of the offer. This shall invalidate the offer.
Types of offers
There are various types of offers. Each type of offer varies on the basis of the terms and conditions specified in the offer. Let us examine these forms of offers:
Express offer
Section 9 of the Contract Act defines the meaning of express offer. An express offer means an offer made in words or through word of mouth. For example: Ram writes a letter to Jagmohan proposing to sell his car for Rs.1,00,000. This is an express offer.
Implied offer
Implied offer means an offer which is communicated not by words but with the help of some action or fulfilment of some condition. For instance: Ram writes a letter to Jagmohan proposing to sell his car for Rs.1,00,000 stating “ send us your further queries, should you be interested in the deal.”
Specific offer
It refers to an offer which is particularly made to a specific person. Thus, in order to convert it into a valid agreement, the offer must be accepted by the same person. For instance: The offer made by Ram to Jagmohan is an ideal example of a specific offer since it is specifically addressed to Jagmohan.
Cross Offer
It refers to the circumstance where the two parties make identical offers to each other without having knowledge of the opposite party’s offer. For instance: Meanwhile Jagmohan makes an identical offer to Ram regarding sale of Ram’s car for Rs. 1,00,000.
Counter offer
It refers to an offer made in return to the original offer with modified terms and conditions. The intent behind such an offer is to seek bargain in the original terms and conditions. For instance: Jagmohan makes a counter offer to Ram to reduce the selling price to Rs. 80,000.
General offer
It refers to the offer made to the public at large. Thus anybody aware of the offer may accept the offer by fulfilling the given terms and conditions. For instance: Ram issues an advertisement in the newspaper, inviting the interested buyers to purchase his car for Rs.1,00,000.
Invitation to offer
An invitation to offer is simply an offer to invite an offer. For instance, in the case of Badri Prasad vs. State of Madhya Pradesh (1970) the appellant had entered into a contract to cut trees with some specification. Subsequently, after the enforcement of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the appellant refrained from chopping certain types of trees. After due negotiation, the divisional forest officer wrote to appellant asking “kindly inform whether you are ready to pay further Rs. 17,000 for the contract of big tree..” the court considered this to be an invitation to offer.
Auctions
The proposition of invitation to offer can also be observed in auctions. An auction is nothing but sale of goods or property, whereby the interested buyers openly bid for the same, raising their offer. The auctioneer communicates his/her acceptance by knocking the hammer. A similar situation was observed in Payne vs. Cave (1789) 3 TR 148, wherein the defendant made the highest bid in an auction but withdrew it before the knock of the hammer. The court concluded that the auctioneer’s request for bids is an invitation to treat, whereas each bid submitted constitutes an offer. Until the knock of the hammer, the offer is not considered to be accepted.
With that being said, in the case of Harris vs. Nickerson (1873) LR 8 QB 286 the court has clarified that an advertisement to auction is just an invitation to offer and does not bind the auctioneer in any form of legal contract. Therefore, when the plaintiff filed a suit against the defendant claiming recovery of travelling expenses, the court refused to impose any liability upon the defendants.
Difference between offer and invitation to offer
Let us quickly examine some distinction between an offer and invitation to offer
Offer
Invitation to offer
Meaning
An offer is a wilful intent of the party to establish legal relations between the two.
An invitation to offer involves inviting the interested parties to make an offer.
Definition
The term is explained and defined under Section 2(a), Indian Contract Act, 1872.
The term is not defined anywhere in the Act.
Validity
An offer is required to formulate a valid agreement.
An invitation to offer does not constitute a valid agreement.
Acceptance
Once accepted, it gives birth to a valid agreement.
Acceptance of invitation to offer merely becomes an offer.
Effect
It becomes legally binding as soon as it is accepted by the parties.
Mere acceptance does not attract bindingness.
To whom can be made
It is extended to a specific person/ party.
It can be extended to a group or people at mass.
Negotiation
It is not open to negotiation unless specifically stated otherwise.
An invitation to offer is an indication of willingness to negotiate.
Example
Example: A buyer expressing his/her interest in purchasing the product after shortlisting it from the manufacturer’s catalogue.
Example: A manufacturer displaying his goods in the form of a catalogue along with prices.
Conclusion
The concept of offer and invitation to offer squarely applies in our daily lives. Thus, it becomes crucial to understand the key differences between the two. Shopping at a store where the products are on a display with their price tags can be considered as an invitation to offer. It means that the shopkeeper is inviting the prospective buyers to purchase the products by paying for the same at the billing counter. Similarly, online shopping also works with the same mechanism. Advertisements in the newspaper, tenders issued in newspapers, sale/rent/purchase advertisements in papers etc are all based on the concept of invitation to offer.
After the case analysis, we can successfully distinguish between an offer and an invitation to offer. Offer and invitation appear to be similar, but there is a slight difference between the two of them. One has to clearly examine the words of the statement constituting the offer to understand whether it is an offer or an invitation to offer. A valid proposal and acceptance of the same creates a binding obligation upon both the parties. Thus, failure to honour the commitment may attract legal actions in form of suit or compensation.
On the contrary, an invitation to offer does not create any legal consequence or legal relationship between the parties. In the case of invitation to offer, the parties possess an intent to create a legal relation, however such an intent is subject to certain qualifications. Unless such qualifications are fulfilled, it does not constitute a contract. On that note, it is imperative for the parties to be cautious while examining the offer and invitation to offer, in order to avoid unnecessary litigation.
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This article is written by Arya Senapati. It attempts to analyse the landmark judgement of Unnikrishnan vs. State of Andhra Pradesh (1993) to extrapolate the factual matrix, legal issues, arguments and points of judgement in this case. It also covers the related legal principles pertaining to constitutional law and other related case laws for a better understanding.
Table of Contents
Introduction
Everyone has heard statements like “he is enrolled into that institution on management quota” or “he got admission through donation” and wondered what such a process of enrollment ensues. Management quotas, donation seats, and private seats are nothing but a capitation fee that a student pays to enroll in a private educational institution to study a course of their choice. The pay is usually higher than that charged by government institutions.
Various cases have dealt with the legality of capitation fees since it goes against the right to education available to all citizens of India. However, on the other hand, the private educational institutions argued each time that every citizen also has a right to establish an educational institution.
Private educational institutions surely require a higher amount of funds for their operation but can such a requirement allow imposition of capitation fee? This question baffled the courts of India for years and ultimately a decision was reached in the matter of Unnikrishnan vs. State of Andhra Pradesh (1993).
Details of the case
Case name: Unni Krishnan, J.P. and Ors. vs. State of Andhra Pradesh and Ors.
Parties involved: Unni Krishnan, J.P. (Petitioner) & State of Andhra Pradesh (Respondent)
Court: Supreme Court of India
Bench:
Hon’ble Chief Justice of India L.M. Sharma;
Hon’ble Justice S.P Bharucha;
Hon’ble Justice S.R. Pandian;
Hon’ble Justice B.P. Jeevan Reddy;
Hon’ble Justice J. S. Mohan.
Date of Judgement: 4th February, 1993
Citation: 1993 AIR 2178, 1993 SCR (1) 594, 1993 (1) SCR 594, (1993) 1 JT 474 (SC).
Background of the case
The legal questions discussed in the case of Unnikrishnan vs. State of Andhra Pradesh (1993) first arose in the case ofMiss Mohini Jain vs. State of Karnataka (1992). The primary question is regarding the fundamental right of a citizen of India to receive education for medical, engineering and other professional degree-based courses. The Apex Court did not pay any heed to the question regarding the right to primary education in Article 45 of the Indian Constitution being related to or a part of a fundamental right under Article 21 or not as it was not raised in this case.
In the present case, it was argued that since the judgement of the Mohini Jain case gives a positive finding on the legal question of whether Article 45 is a fundamental right under Article 21, it is necessary to consider the question and its correctness based on the merits but the bench hearing the Unnikrishnan case did not feel the need for such a consideration.
Facts of the case
A complex set of facts remains that led to the case. The case initially emerged from the State of Andhra Pradesh and then led to multiple petitions being filed against many other states of India. Largely, four states were involved in the case.
On 25th May, 1992, the government of Andhra Pradesh issued notifications which invited applications to receive permission for establishing medical, dental and engineering colleges across the state. 8th June, 1992 was set as the last date for receiving such applications. The ones who were applying for medical colleges were asked to deposit a sum of Rs. 1 crore and provide a bank guarantee of another one crore along with substantial evidence of financial capacity of four crores.
A committee was constituted to inspect the land and other liabilities offered by the applicants. The committee subsequently created a set of guidelines and submitted a report which recommended 12 medical colleges and 8 dental colleges. The Chief Minister gave his approval to the recommendations, and a government order was published granting permission to do so. Various writ petitions were filed in the Andhra Pradesh High Court challenging the grant of the order.
The basis for the challenge was that various private engineering colleges operated in the state and up until the academic year of 1992-93, the seats in these private engineering colleges were filled through a common entrance exam based on merit. The management of these institutions held no control or choice over the matter of admission. They were simply allowed to impose a fee higher than that of a government institution for the purpose of admission.
This uproar basically meant that they sought the right to impose as hefty a capitation fee as they wished without any regulation. This created unrest among the students and teachers, who then protested against such admissions.
The government was unable to ignore the extent of the unrest and pressured the private engineering colleges not to make any admissions unless and until clear rules were drafted as per Section 3A. The engineering colleges opposed the order on the grounds that they had already made admissions based on their choice to the extent of 50% of their seats.
These particular admissions led to a series of writ petitions in the Andhra Pradesh High Court. A full bench of the Andhra Pradesh High Court allowed the said writ petitions and declared Section 3A as constitutional. It stated that the admissions made by private engineering colleges to the extent of half of their seats based on their own choice is absolutely illegal.
The High Court further held that the government order that granted permission to 12 medical colleges and 8 dental colleges was invalid in its essence. Considering this decision and the order of the Andhra Pradesh government, the students who were admitted by the management came to protest the decision and filed multiple special leave petitions before the Supreme Court of India.
Similar petitions were filed across many other states in India.
Involvement of other states in the present case
Since the issues involved in the case were national issues, all the states were invited to file representation by the Apex Court. Even though notice was sent to all the states of the nation to appear in the present case, the ones that appeared in the case were the states of Andhra Pradesh, Maharashtra, Tamil Nadu and Karnataka. All the matters present in the Unnikrishnan case were concerned largely with these four states.
Legal issues involved
There were various legal issues pertaining to the right to education which were involved in the present case. The primary legal issues which the Apex Court ruled upon were:
Whether the decision laid out in the case of Mohini Jain is correct based on its merit?
Is the right to education a guaranteed fundamental right that the citizens of India are entitled to by virtue of the Constitution?
Is the idea of charging a capitation fee feasible with the entitlement of the right to education guaranteed to the citizen?
Is the imposition of a capitation fee for getting admission to educational institutions a practice that is arbitrary, unfair, unjust and violative of Article 14 of the Constitution?
Contentions of the party
Petitioners
The petitioners (private educational institutions) contended the following points:
The state has no monopoly over education. Every citizen has a fundamental right to establish and run an educational institution by virtue of Article 19(1)(g) and such a right even covers the establishment of educational institutions which have a motive of generating profit in front of a business. Reasonable restrictions can be imposed on the right just like they are imposed on all other fundamental rights but barring the lawful restrictions, the right is an absolute right.
The real problem is not founded in the establishment of educational institutions which are private in nature but in unnecessary state control. There is a demand for such institutions by people who can afford to study in it and wish to get admitted to their desired courses and therefore the free flow of demand and supply must be maintained.
The venture of an educational institution which is private in nature is not so different from other business ventures and it is irrelevant if there exists a motive for profit or not from these institutions. Wherever there is a profit motive, persons with adequate means will open more schools and colleges and make education accessible to all classes. There are not a large number of people who can philanthropically maintain and manage educational institutions in the current day and age.
If the Apex Court upholds the fact that a person has no right to establish an educational institution as a business venture, then a person should at least have the right to establish and run a self-financed educational institution. Such institutions could be referred to as cost-based educational institutions. That simply implies that these institutions would be free to collect as many fees as they wish from parties who are capable of paying the same so as to enroll their children in desirable courses. Such a sum would not only cover the normal expenditures of running an educational institution but also cover the diversification, expansion and growth costs. The government should not be allowed to have any interference in the fixation of fees in such institutions. The needs of different educational institutions could be different based on the standard of education and the facilities they seek to provide. The government can surely impose a condition that few seats in such self-financed institutions must be reserved for those meritorious students who shall pay the same fees as the government institutions. This condition allows both students with capacity and meritorious students to access education in a streamlined manner.
The judgement in the Mohini Jain case was not correct when it stated that charging any amount which is beyond the prescribed limit of the fee prescribed by the state government is a capitation fee. This proposition creates an impossible situation for private educational institutions to maintain their operations and meet their expenses. The cost of imparting education to medical and engineering students is undoubtedly high and such costs are borne by the government in state institutions but the government creates no subsidies for private educational institutions.
Even if the courts uphold the proposition that educational institutions do not fall under the definition of a trade or a business within the meaning of Article 19(1)(g), it is undoubtedly an occupation within the meaning of the term present in the Article. The mention of all four terms i.e. profession, occupation, trade and business is meant to cover the larger expanse of human activity in the realm of economics. It is not important for the petitioners to point out which expression their activity falls under.
The right to establish educational institutions also arises from Article 30. The framers of the Constitution could not have intended to limit the right to only minorities at the deprivation of majority communities and therefore, such an interpretation can also be upheld.
By merely recognising or affiliating private educational institutions, they do not become instrumentalities or agencies of the state within the meaning of Article 12 of the Indian Constitution and therefore the attributes of state action or function cannot be made applicable to such colleges so as to bring them under the disciplinary purview of Part III of the Constitution. The case becomes different if the institution is on the receiving end of any aid from the state. In such situations, the authority of Article 29(2) comes into the picture but even then it does not oblige institutions to admit students solely on a merit basis but merely allows them to deny admission to anyone on the mentioned grounds.
Respondents
The respondents (various states of India) contended the following points:
The respondents contended that in India, both Hinduism and Islam consider education as a religious duty and it has never been treated as a business or a trade. It has largely been treated as a mission and not a trade. The commercialisation of education goes against the very culture of the nation and does a large disservice to the very fabric of the nation’s policies. The parliament’s intention with the legislation of the University Grants Commissions Act, 1956 was clear as it sought to prevent the commercialisation of education.
It is to be noted that imparting education is one of the most important state functions and this function can be performed by the state either directly or through state instrumentalities like private educational institutions. Whenever the state permits a private organisation or an individual to perform state functions, it is the duty of the state to make sure that one does not get admission or priority based on economic superiority causing detriment to the merit of other students.
The idea of collecting the cost of education is what allows cost-based or self-finance educational institutions to function but such an operation is morally wrong and opposed to the interests of the public. A capitation fee cannot be termed as a non-capitation fee simply because it is charged in the name of running a cost-based or self-financed institution. Such terminologies used to hide capitation fees are simply mere pretences used to charge capitation fees for admission. It leads to an exploitation of a section of society and is largely elitist in nature which goes against the constitutional principles. It creates class bias, and the students belonging to the lower class suffer the brunt.
If for whatever reason the Apex Court holds that a citizen or an individual has the right to establish an educational institution, the right does not entail an additional right to affiliation or recognition from the government. The Apex Court has held before that even a minority educational institution has no right to affiliation or recognition and therefore such a right cannot be conferred upon the majority community or individuals as well. If such a right to establish an educational institution is recognised, it shall then be open to the state or the universities to grant recognition or affiliation and impose necessary conditions deemed fit to maintain the interests of merit, fairness, maintenance of education standards and others. The government will have the choice to impose the condition to mandate such educational institutions to admit students based on merit alone. The state government shall also have the option to withdraw recognition or affiliation from such educational institutions in case of any breach or departure from the conditions imposed on them by the government.
If in any circumstance, the government doesn’t impose such conditions on the private education institutions, such conditions would be implied to be imposed as in such situations, the private educational institutions function as state instrumentalities conducting state action. The very fact that education is a primary public function and heavily interlinked with state processes makes their operation a state action. At the very least, they would be required to conduct themselves fairly in the process of admitting students and recruitment of teachers and non-teaching employees. These types of educational institutions would be bound to not charge any fee which would be higher than that charged by governmental institutions offering the same course. In case of extra finances and expenditures, these institutions must meet them through donations or help from religious and charitable organisations. These institutions cannot be allowed to demand that they collect capitation fees first and then establish the institution. Only the bare minimum operational costs can be charged from students, not the hefty capital costs.
Ratio decidendi of the judgement
The following points were upheld by the Supreme Court of India in the present case:
Every citizen of India has a fundamental right to education which arises from Article 21 but such a right is not an absolute right. Its extent is determined with regard to Article 45 and Article 41. In simpler terms, every citizen has the right to free education till 14 years of age and therefore the right to education depends on the subjective limits of the economic capacity of the state.
Obligations created by Articles 41, 45 and 46 can be discharged by the state either directly or through aiding, recognising and affiliating private educational institutions. Unaided institutions can charge a higher fee.
Every citizen has a right to establish an educational institution but has no right to affiliation or recognition or aid. Without affiliation or recognition, the degree or certificates provided by the institutions hold no value and therefore the right to establish an educational institution is without any substance.
Section 3A of Andhra Pradesh Educational Institutions (Regulation of Admission And Prohibition of Capitation Fee) Act, 1983 was held to be violative of Article 14 and, therefore, unconstitutional and void.
The decision of Mohini Jain was reversed through the decision laid out in the case of Unnikrishnan vs. State of Andhra Pradesh (1993). Higher fees can be charged by private unaided educational institutions. The higher fee limit must be fixed by the government committee and any fee charged above it shall be understood as a capitation fee. Such a capitation fee was prohibited.
Directive principles of state policy and fundamental rights are complementary and supplementary to each other. Even though DPSPs are not justiciable and Fundamental Rights are justiciable, that is the only difference between the both. DPSPs shall aid in interpreting the fundamental rights and vice versa.
Obiter dicta and rationale behind the judgement
The judgement stated that the writ petitions filed by the private educational institutions that intend to impart medical and engineering education challenge the correctness of the decision given by the learned division bench in the case of Miss Mohini Jain vs. the State of Karnataka (1992).
Here, the petitioners were those who ran medical or engineering colleges in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu. They contended that if the decision in the Mohini Jain case was considered to be right and was then implemented in various state governments, the institutions would be forced to shut their operations and no other alternative would be left for them. The Apex Court, therefore, believed it is important to first ascertain what truly the decision of the Mohini Jain case stated.
Issue 1: Correctness of Mohini Jain case
The state legislature of the Karnataka Government enacted the Karnataka Educational Institution (Prohibition of Capitation Fee) Act, 1984 which intended to curb the evil and mala fide practice of commercialisation of education as it has not helped maintain the standards of education in the state and therefore it was thought to be essential to curb the widespread practice.
A capitation fee was defined as any amount which was paid or directly or indirectly collected in excess of the prescribed fee of an educational institution. Section 3 of the Act prohibited the collection of capitation fees by any educational institution or any person or organisation related to the management of such institution.
Section 5 of the Act states that the state government is competent to regulate the tuition fee or any other fees and deposit that an educational institution may collect or receive for any or all classes of students, through notification.
Section 4 states that the maximum number of students who shall be admitted to a course in a private educational institution and the minimum educational qualifications required for admission shall be decided by the government.
By virtue of the power conferred upon the Government of Karnataka under Section 5 of the Act, the government issued a notification on June 5, 1989 which stated that from the commencement of the academic year of 1989-90, the fees payable in the private medical colleges shall be Rs. 2000 per annum in case of students admitted to the government seats and Rs. 25,000 in case of Karnataka Students and Rs. 60,000 in case of non-Karnataka students.
The case began when Miss Mohini Jain, a non-Karnataka student hailing from Meerut in Uttar Pradesh applied for admission in the M.B.B.S course in a private medical college in Karnataka. The college informed her that she was supposed to pay Rs. 60,000 for the tuition fee of the first year and provide a bank guarantee for the fees payable for the remaining years of the course.
Considering that her parents were not in the right financial condition to pay the demanded amount, she was denied admission. Mohini Jain stated that she was asked to pay a capitation fee of Rs. 4,50,000 for getting admission into the institution but the educational institution denied any such demands being made.
Mohini approached the court under Article 32 and challenged the notification of the Karnataka government requiring separate fees for Karnataka and non-Karnataka students. She prayed for permission to be admitted by paying the same fees as was payable by the Karnataka Students admitted to the Government Seats.
The court considered the legal issues and held that based on the principles set by Articles 21, 38, 39(a), 41 and 45 of the Indian Constitution, the drafters of the Constitution intended it to be mandatory for the state to provide education to all the citizens. It was observed that the objectives which are mentioned in the preamble of the Constitution cannot be fulfilled without education being provided to all the citizens of the state and the dignity of an individual cannot be properly assured without the provision of education.
It was stated that Part III and Part IV of the Indian Constitution are supplementary to each other and the right to education, as envisaged by Article 41, must be turned into a reality to provide full effect to the fundamental rights mentioned in Part III. Without education, fundamental rights cannot be properly enforced or utilised by the citizens.
Based on the capitation fees, the court stated that they were nothing but a mere consideration for receiving admission and facilitating the commercialisation of education. The concept of commercialisation of education has not been envisaged in the Indian Constitution and therefore education cannot be commoditised for sale in India.
Every citizen has a guaranteed right to education under the Indian Constitution and the state is mandated to create educational institutions for all citizens to avail the right. The state is allowed to fulfil the obligation through state-owned or state-recognised educational institutions.
The court also held that the state action in allowing the imposition of capitation fees charged by the educational institutions recognised by the state was an arbitrary act which was violative of Article 14 of the Indian Constitution which guaranteed the right to equality. The imposition of capitation fees leads to severe inequality and bias among people of different economic groups.
Further, the court held that the charging of Rs. 60,000 for admission is equivalent to imposing a capitation fee. It is a form of capitation fee to charge a hefty amount for non-Karnataka students.
The Apex Court was of the view that if the government has fixed Rs. 2000 per annum as the tuition fees for students in government colleges and in private educational institutions with government seats, then the government should also take adequate steps to ensure that none of the private educational institutions charges more than Rs. 2000 per annum for admissions to other students.
As per legal principles, the Apex Court stated that whenever a state government grants permission to a private educational institution to establish a college and approves its curriculum to run a particular course, the private institution is fulfilling functions which are given to the state under the constitution. Based on this rationale, the imposition of Rs. 60,000 per annum for students not belonging to the state of Karnataka is nothing but a capitation fee which cannot be sustained under the law and must be removed.
The writ petition was allowed but admission was denied to Mohini Jain as she had not secured the admission based on merit and the course had already commenced in March-April 1991 but the decision was given in 1992.
The bench dealing with the Unnikrishnan case stated that it was not concerned with the peculiar questions which arose in the previous case but simply the correctness of the Mohini Jain judgement which can be formed into three primary questions which form the legal issues for the present case of Unnikrishnan vs. State of Andhra Pradesh (1993). The first being whether the fundamental right to education is guaranteed by the Constitution of India to all Indian citizens. The second question being whether an Indian citizen has a fundamental right to establish and operate an educational institution under Article 19(1)(g) or any other provision of the Indian Constitution. The final question was whether the grant of permission to establish and run a university imposes an obligation on educational institutions to operate without any bias or arbitrariness when it comes to the admission of students into various courses.
Issue 2: Fundamental right to education under the Indian Constitution
On this legal issue, the Apex Court stated that the right to education is not expressly mentioned as a fundamental right under Part III of the Constitution of India. The court also mentioned that it is not necessary for a fundamental right to be expressly mentioned in the Constitution for it to be treated and effectuated as a fundamental right.
Moreover, a distinct set of rights have been drawn from Article 21 of the Constitution which includes the right to free legal aid and speedy trial, the right to adequate means of livelihood, the right to dignity and privacy, the right to health and the right to a pollution-free environment amongst many others. Article 21 is an umbrella for other rights that are not explicitly mentioned under the fundamental rights but are equally crucial in maintaining the right to life and personal liberty. This includes rights such as freedom of the press, right to adequate means of livelihood, right to education, etc.
While the Article is phrased in a negative manner, it was intended to have a broader interpretation to include a variety of rights which constitute the true realisation of personal liberties. While Article 19(1) deals with a particular set of rights necessary for human life, the residual rights which are not mentioned in Article 19 are covered by the broader interpretation of “personal liberty” in Article 21. This interpretation has been sustained in law for quite a long period of time.
The Apex Court then referred to the judgement of Olga Tellis vs. Bombay Municipal Corporation (1985) and stated that the interpretation of the term “life” has to be expansive and broad to truly fulfil the objectives of Article 21 in the scheme of Constitutional principles. The Apex Court referred to the part of the judgement which stated that the wings of the right to life which is guaranteed by Article 21 cover a lot of aspects. It simply does not perceive the physical existence of life which can be taken away through a death sentence or any other procedure established by law.
The physical and literal meaning of life is merely one aspect of the right to life but other rights arising from it such as the right to livelihood also form an equally important part of the fundamental right. Anything that makes life and living sustainable and is necessary for the continuation of a meaningful life of dignity must be considered to be a part of the right to life in an integral manner. When a state is obliged to secure adequate means of livelihood for its citizens, it would be unfair to exclude the same right from the realm of fundamental rights, especially the right to life.
The Apex Court further referred to the case of Bandhua Mukti Morcha vs. Union of India (1984) to substantiate how precedents show that fundamental rights especially Article 21 must be construed through the lens of DPSP. The Apex Court reiterates the part of the judgement which states that the right to live a life of human dignity is ingrained in Article 21 and derives its essence from DPSPs especially Articles 39 and 41.
Based on these decisions, the Supreme Court reached the conclusion that the judiciary has been constantly upholding the principle that fundamental rights and directive principles of state policies are supplementary and complementary to each other. The courts have also been laying emphasis on the fact that the fundamental rights in Part III of the Constitution must be interpreted with regard to the preamble and the directive principles of state policies.
The Apex Court notes that even though the judiciary initially hesitates to place significant emphasis on the importance of Part IV of the Constitution i.e. the directive principles of state policies, the hesitation has been done away with.
Even though the case of State of Madras vs. Champakam Dorairajan (1951)held that fundamental rights hold a preeminent position as compared to directive principles of state policies, this understanding has taken a major shift ever since and that has been a change in the perception of the courts in his matter which allows for an interplay of fundamental rights and directive principles of state policy.
The Apex Court refers to the view taken in the case of Hanif vs. State of Bihar (1959) which states that directive principles of state policies cannot be completely ignored while interpreting fundamental rights but rather the courts must provide a harmonious construction to both of these principles.
Based on all these cases and principles, the Supreme Court reached the view that both Parts III and IV of the Indian Constitution are supplementary and complementary to each other and fundamental rights are a means to achieve the goals indicated in Part IV of the Constitution. It was also held that fundamental rights must be understood through the lens of directive principles of state policy. The court stated that it wanted to approach the first legal issue with this principle in mind.
Article 21 and the right to education
In the Bandhua Mukti Morcha case, the court held that the right to life as guaranteed by Article 21 encompasses educational facilities within its expansive purview. Considering the ultimate importance of education in the life of an individual and the nation at large, the Apex Court agreed to the reasoning of the judgement made in the Bandhua Mukti Morcha case that the right to education arises from the right to life as mentioned in Article 21. The right to education is of unignorable importance in an individual’s life, and it has been recognised in India and the world for decades.
The Apex Court stated that in the decision of the Mohini Jain case, the importance of education was duly and righteously stressed. The court agreed to the observation made in the Mohini Jain case that without education, it is impossible to achieve the objectives which are set forth by the preamble of the Constitution. The court took note of the fact that the right to education is mentioned thrice in Part IV and twice in Part III of the Indian Constitution. This fact in itself showed the importance given to education by the framers of the Indian Constitution.
The petitioners contended that when the state, by force of law, deprives a person of his or her right to education, only then can Article 21 be brought into discussion. The Apex Court stated that this particular contention was made only to create confusion regarding the actual issue. The first legal issue was whether Article 21 provides the right to education, and then only the question regarding the state taking away the right emerged.
The mere fact that the state is not depriving a person of their right to education does not entail that the right to education is excluded from the right to life. The Apex Court stated that the interpretation of a right does not depend on the perception of threat towards it. The constituents of the right to life therefore do not depend on the existence of any circumstance which might lead to its deprivation. The very essence of upholding the right to education as an important aspect of the right to life is that the state cannot deprive the right without a procedure established by law.
The Supreme Court further stated that the decision in the Mohini Jain case was correct regarding the fact that the right to education arises directly from the right to life. The real question, as per the court, was what was the true extent of the right and what was the level of education that the state must provide to every individual.
In simpler terms, the real issue as per the Apex Court was that citizens demand the state to provide for an adequate number of medical and engineering colleges and other educational institutions to fulfil their educational needs. With regard to the said issue, the judgement of the Mohini Jain case states that citizens can demand such a thing but in the instant matter, the court denies upholding such a broad interpretation.
As per the Apex Court, the right to education which arises from the right to life and personal liberty under Article 21 must be interpreted in the light of Part IV of the Constitution, several provisions of which deal with the right to education as has been mentioned above.
Article 41 states that the state is obliged to make provisions to secure the right to work, education and public assistance in case of unemployment, old age and sickness.
Article 45 states that the state shall take all necessary endeavours to provide free and compulsory education to all children till the age of 14.
Article 46 states that children belonging to weaker sections of society also have the right to education.
These three articles in particular are concerned with the goal of achieving universal education. In the context of Articles 45 and 41, the right to education means that every child or citizen of India must receive free and compulsory education till 14 years of age and after the child or citizen completes 14 years of age, his right to education functions within the limits of the economic capacity of the state.
Based on these factors, the Apex Court asks the simple question that even after the passage of such a long time after the commencement of the Constitution, can the same time limit fixed by the article be retained or should it be enlarged.
The Supreme Court stated that the state must honour the command of Article 45 and make it a reality before the end of this century. The court further states that this promise could be fulfilled not only through state schools but also through recognising and aiding voluntary non-governmental organisations that are ready to impart free education to children.
The Apex Court further clarified that in this judgement in particular, the bench does not intend to make any remarks on such private schools or private educational institutions except for professional colleges, as the discussion surrounding the case was based on the principles laid down in Mohini Jain judgement and the challenges were made to those principles only.
At this point of the judgement, the Supreme Court refers to the additional affidavit filed by the Union of India which dealt with the status of primary and upper primary education in India. The affidavit stated that there has been a significant increase in the enrollment rates in primary schools which has made India one of the largest educational systems in the world.
On the provision of free education, the affidavit stated that to increase enrollment, all state governments abolished tuition fees in government schools which were run by local bodies and private aided institutions were also mostly free in such states but coming to private unaided schools which made up to 4% of the total elementary schools in the country, a fee was charged in such schools.
Other educational costs like books, school uniforms, bags and transportation were not borne by States except in certain cases where help was provided to children of poor families or those belonging to Scheduled Castes and Scheduled Tribe backgrounds. The reason that the affidavit gave for schools not being able to bear the additional expenses was that 96% of the expenditure of the school went towards giving the salaries of teaching and non-teaching staff.
Coming to the provision for compulsory education the affidavit stated that 14 states and 4 Union Territories have legislated policies for providing compulsory education to all but certain social and economic obstructions have prevented all the students from enrolling in schools and imposing the rules and regulations.
The affidavit also mentioned various steps taken by the central and the state governments to further the objectives of the National Education Policy through measures like Operation Blackboard (a government initiative to provide basic facilities to government schools) and how such initiatives increased primary education levels across the nation.
Right to education after 14 years of age
Coming to the right to education after 14 years of age, the Supreme Court stated that the right to education means that every citizen has the right to demand the state to provide educational facilities to them but with the condition that it should be within the economic capacity and development limits.
The court clarified that the statement does not intend to transfer Article 41 from Part IV to Part III of the Constitution but it simply relied on Article 41 to prove that the right to education arises from Article 21 i.e. right to life. The court does not believe that any state would hold on to the opinion that it cannot and would not provide education to people within the limits of its economic capacity and development but such limits have always functioned within the subjective satisfaction of the state governments.
The right to free education is only available to children till the age of 14 years and hence the state is obligated to provide education within its economic and development limits after 14 years. The Apex Court held this proposition valid and stated that this proposition is not new, it was previously stated in the case of Francis C Mullin vs. Administrator, Union Territory of Delhi (1981) wherein the Supreme Court had previously stated that various rights arise from right to life like the right to nutrition, human dignity, clothing, shelter, reading and writing facilities, expression, free moving etc but these rights will always depend on the extent of the development of the nation.
The Apex Court also stated that merely because a reference was made to directive principles to interpret the right of education flowing from Article 21, it does not mean that each and every obligation of the state mentioned in Part IV becomes a right arising from Article 21 in that regard.
Issue 3: Right of individuals to establish and run private educational institutions
Before delving into this legal issue, the Apex Court analysed various relevant enactments which dealt with capitation fees, affiliation and recognition to various types of government as well as private educational institutions connected to the instant case.
University Grant Commission Act, 1956
The first statute referred to by the Apex Court was the University Grants Commission Act, 1956. This Act was legislated by the parliament to provide for the coordination and maintenance of standards of education in various universities in India and it also led to the creation of the University Grants Commission (UGC).
In the Act, affiliation is defined as relation to a college or recognition of a college or association with a college and admission as well as the connections to the privileges of a university. The commission is empowered by the Act to regulate the fees which colleges affiliated with universities can charge.
Indian Medical Council Act, 1956
The Indian Medical Council Act, 1956 was legislated by the government for reconstruction of the Medical Council of India and for the purpose of maintaining a medical register for India and other related matters. In the said legislation, the term “approved institution” was defined as a hospital, a health centre or any institution which has recognition from a university as an institution in which a person can undergo required medical training before getting awarded a medical qualification.
All India Council for Technical Education Act, 1987
The Act was enacted by the centre to establish the All India Council for Technical Education (hereinafter referred to as ‘AICTE’) so as to facilitate coordination, development and planning of technical education across the nation and for the promotion of quality and maintenance of education standards in technical courses across India.
Section 3 of the Act establishes the council and Section 10 mentions the various functions of the council. The AICTE council is responsible for fixing norms and guidelines regarding tuition fees and other charges levied on students availing technical education, providing approval to new technical institutions and taking important measures to prevent the commercialisation of education.
The Supreme Court observed that there was no express provision in the Act which stated that no new technical education can be established without the permission of the AICTE but considering the vast power granted to AICTE by Section 10, it can be implied that the council can exercise such a power even without its express mention. As per the Apex Court, the council held the power to prevent new courses, faculties and classes even in existing institutions.
The Apex Court took note of the fact that while granting permissions to new institutions, the council makes them aware that they should not only abide by the rules and regulations framed by the AICTE but also prevent themselves from charging any capitation fees from students in any manner. The council takes strict actions such as withdrawal of recognition or affiliation in cases where the institution charges a capitation fee from students for purposes of admission.
Principles regarding the right to establish a private education
In the next portion of the judgement, the Apex Court took note of the ground reality in matters of education. It observed that even though the second highest budgeted expenditure is done on the sector of education, the circumstances seem inadequate and insufficient to meet the needs of citizens.
The Supreme Court took note of the fact that many global countries spend almost 6-7% of their Gross National Product (GNP) on education but India merely spends 3% on their education sector. Out of the expenditure dedicated towards education, almost 70-80% went towards paying the salaries of teachers and other staff.
There exists a lack of self-discipline and commitment towards maintaining a quality and standard of education in government schools and colleges. Such a degradation in standards led to the creation of private education institutions which met the needs of the public and provided for quality education.
The state lacked the position to devote more resources towards the constantly growing demand for quality education and therefore private educational institutions filled the gap. The Apex Court stated that the Central Government was incapable of providing additional resources for medical and technical education and was also unable to aid private educational institutions financially and that led to the Central government approving private educational institutions and making them conform to established guidelines and norms but the government cannot force private educational institutions to charge the same fee as is charged by governmental education.
Based on all these considerations, the Apex Court submitted that:
Granting unconditional and unqualified rights to education at all levels to all individuals involves a constitutional duty for the state to establish educational institutions by itself or through other state instrumentalities. This proposition is not guaranteed by the Constitution as it is unrealistic and impractical.
By providing recognition to private educational institutions, the state does not have an agency relationship to fulfil its constitutional obligations as there exists no circumstance for importing the principles of agency in such situations.
The principles provided in the judgement of the Mohini Jain case must be reconsidered.
It is unrealistic and foolish to prevent private institutions from providing education, especially higher education. The pirate institutions must be encouraged to collect the necessary resources for maintaining standards of education and contributing towards achieving constitutional goals.
Regulatory controls must be increased to prevent private educational institutions from commercialising education. Minimum standards of education and educational facilities must be maintained through effective regulations.
Admissions must be given based on merit and seats must be reserved for weaker sections of the society who are deserving of affirmative action. Admission norms must be pre-determined and clear.
It was stated by the Apex Court that private educational institutions are necessary and the government alone cannot maintain the rising demand for higher education, especially medical and technical education, without the aid of private institutions. Even though education is a primary function of the state, it cannot exercise a monopoly over the subject.
Private educational institutions can be both aided and unaided. The government can provide either complete aid or a part of the aid required for operations. For aided institutions, rules framed by the government or affiliation authorities must be strictly followed, especially in matters of admission of students and recruitment of staff. Aided institutions would not be allowed to charge a fee higher than that prescribed by the government. In the case of un-aided institutes, they cannot be forced to charge the same fee as that of governmental institutions. They can voluntarily choose to charge the same prescription but they are free to charge higher fees to meet their cost of imparting education. These institutions shall function on the concept of self-financed and cost-based education institutions.
Such institutions also pose the question of who shall determine the actual cost of education and how it can be regulated. The Supreme Court noted that the cost of education can vary from institution to institution and a government authority must be designated for ascertaining such costs.
The question which was held bothersome as per the Apex Court was that the constitutional philosophy and the intentions of the parliament and state legislatures make it clear that commercialisation of education stands against the very interests of public policy but how can private institutions be allowed to function without commercialising education. To answer this question, the Apex Court moved to the next legal issue.
Issue 4: Fundamental right to establish an educational institution
The Apex Court takes note of the fact that Article 19(1)(g) of the Indian constitution provides all citizens a right to practise any profession, occupation, trade or business. Clause 6 of the Article states that nothing in the Article shall prevent the operation of law in force in India insofar as it imposes or prevents the state from drafting a law to impose reasonable restrictions on the exercise of such a right for the general public interest and nothing shall prevent the state from making laws relating to professional or technical qualifications required for practising certain professions, occupation, trade and business.
The Apex Court stated that it doesn’t intend to make any remarks on whether the right to establish an education institution is an occupation or not but the court was sure of the fact that education cannot be considered as a trade, business or profession as all these three terms carry a motive of profit with it and education cannot be treated as a commerce item in the nation.
By integrating education into the folds of commerce, the courts would have to go against the social ethos and philosophies of the general public and society. Education has always been a religious duty in India. The Apex Court noted that education is a charitable activity and not a trade or a business. Education is a mission and a vocation rather than being a profession or a business.
The Supreme Court noted that the intention of the parliament was clear on the fact that the commercialisation of education is a vice to society and must be prevented at all costs. Even the state legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu were expressive of their intention of eradicating and presenting commercialisation of education in the preambles of their respective Acts which were brought into question in this particular case.
The Apex Court upheld the proposition put forward in the case of The State of Bombay vs. R.M.D. Chamarbaugwala (1957), in which it was stated that education cannot be termed as a trade or a business in India. Education cannot be interpreted as commerce and the petitioners cannot rely on the broader meaning of the term “occupation” in their contentions to bring education into the folds of profit-yielding commerce.
The Apex Court then moved forward towards considering the decisions referred by the petitioners in their contentions to support their argument that the right to establish an educational institution manifests from Article 19(1)(g).
The first decision cited by the petitioners was the decision of Bharat Sevashram Sangh vs. State of Gujarat (1986), wherein it was held that Section 33 of the Gujarat Secondary Education Act, 1973 empowered the government to take over the management of an educational institution for five years or less. In specific circumstances, the aforesaid Section was held to be constitutional as it was in the interests of the general public and not a violation of Article 19(1)(g).
Based on this decision, the Supreme Court stated that this decision was irrelevant to the present case as it did not say anything about education being a profession, occupation, trade or business. Next, the petitioners had placed their reliance on the decision of Bangalore Water Supply and Sewerage Board vs. R. Rajappa &Ors. (1978) wherein it was held that educational institutions would fall under the ambit of the term “industry”.
The Apex Court stated that such a statement was made in a different context and therefore had no applicability in the present case. The next case cited by the petitioners was the case of State of Maharashtra vs. Lok Shikshan Sanstha (1971) wherein it was stated that during the period of an emergency, the right to establish an educational education was also barred along with other fundamental rights. The court noted that the decision was irrelevant to the present case as the decision did not mention if such a right is available generally or not to the petitioners.
The Apex Court stated again that the activity of imparting education cannot be termed as a profession within the meaning of Article 19(1)(g). Establishing educational institutions can never be brought into the purview of “practising any profession” as has been envisaged in Article 19(1)(g).
Teaching can be considered as a profession but establishing an education institution is not a profession. On the instant matter, the Supreme Court stated that every individual or a body of persons possesses the right to establish an educational institution but such a right is not an absolute right and is subject to reasonable restrictions as well as laws made by the state for the interest of the public.
On the contrary, the Apex Court also clarified that the right to establish an educational institution is not accompanied by the right to affiliation or recognition. The court referred to the case of The Ahmedabad St. Xaviers College vs. State of Gujarat (1974) wherein it was held by a nine-judge bench that the right to affiliation does not exist in the Indian context. The court also stated that the right to establish and administer an educational institution is meaningless without the right to affiliation or recognition.
Recognition could be granted by the government or any authority recognised by the government. Affiliation can be granted by a university or other academic bodies empowered to provide affiliation to various educational institutions.
In essence, the Apex Court stated that every individual or body has the right to establish an education institution, recruit staff, build infrastructure, admit students and teach various courses but they cannot demand that their degrees or certificates be recognised by the state. No institution can operate substantially without receiving recognition or affiliation from appropriate authorities or the government itself.
Without having any recognition or affiliation, the certificates and degrees provided by such educational institutions would be invalid and of no use to the students. No one would be interested in joining such an educational institution if the end result is a degree with no value or recognition.
Even the University Grants Commission Act, 1956 clearly mentions that no other institution shall be capable of awarding a degree other than a university and that is exactly why private educational institutions seek affiliation or recognition from universities. The process remains simple wherein students are trained in private educational institutions for the exams conducted by the universities that institutions are affiliated to. If the student qualifies the examinations conducted by the university then they are awarded with a degree from the university.
The educational institutions adhere to the syllabus set by the university and have the same courses of study while following similar modes of instruction and training. These private educational institutions, even though affiliated or recognised, do not award their own degree but rather merely train students for university examinations.
Therefore, the Apex Court noted the fact that private educational institutions merely supplement the state in its state function of imparting education. They perform an allied activity and not a distinct or separate activity independent of the state. Therefore, they cannot be said to be performing a business or a trade.
The state imposes certain rules and regulations while granting affiliation or recognition. The state is bound by Articles 14 and 15 of the Indian Constitution to provide recognition or affiliation in a fair, arbitrary and reasonable manner. Therefore, it would be wrong on the part of the state to grant recognition to private educational institutions without imposing conditions on relevant stakeholders.
If the state grants affiliation without imposing conditions, it would be a constitutional violation of its duties and obligations which it is bound to by virtue of Part III of the Constitution. The general principle which states that whatever rights, obligations, duties and rules apply to the primary state function must also apply to the supplementary activity was upheld by the Apex Court in this matter. The state can not claim immunity from such obligations and neither can it confer such immunity on those performing such supplementary activities.
Based on this notion, the Apex Court developed a scheme which every authority that grants recognition or affiliation must follow. The Scheme was based on the positive parts of various state enactments which were discussed in this judgement. The primary concept which ran through the scheme was intended to eradicate the management’s discretion in matters of admission to the institution. The discretion led to multiple complications and was at the root of the problems like commercialisation of education.
The Apex Court stated that a capitation fee implies demanding an amount which is above what is permitted by law and such is the definition provided in all the state enactments. The Apex Court stated that there must be an effort to create a situation where there is no possibility for the management or anyone acting on their behalf to demand or collect an amount beyond the permissible limit.
The Apex Court clarified that charging the permitted fee by private educational institutions which is bound to be higher than the fees charged by similar governmental institutions cannot be termed as capitation fees. All the state enactments recognise the need to charge higher fees by private educational institutions but they merely seem to regulate fees that can be charged by them which is what is referred to as the permitted fees and bar them from collecting anything above the permitted level which is what is referred to as capitation fees.
Scheme/Guidelines for private educational institutions as per SC
The scheme developed by the Supreme Court of India was in the nature of guidelines which could be recognised by appropriate government and affiliating authorities while imposing conditions. The scheme stated that:
Professional colleges would be permitted to be established and managed only by a registered society, public trust or religious and charitable body. No individual, firm, company or other body shall be allowed to do so. Existing educational institutions which do not comply with such norms were asked to comply within six months.
A minimum of 50% of seats in all professional colleges were to be filled by government or university nominees and shall be referred to as free seats. Students chosen based on merit were to be admitted to such seats and the criteria were to be decided by admitting authorities. The remaining 50% of the seats were to be called as payment calls which were to be filled by candidates ready to pay prescribed fees. No reservation of management quota was allowed. Criteria of eligibility shall be the same for both the seats and the only exception shall be the willingness to pay higher fees. Management of professional colleges was not allowed to impose any other eligibility criteria for both types of seats.
The number of seats in a professional college shall be fixed by appropriate authorities and it cannot be increased without permission of such authority.
No call for applications for admission could be made separately from the university. Only competent authority can make a call for admission.
Every professional college must submit the recommended fee structure to the appropriate authority for approval and the fee must fall within the ceiling limit prescribed by the authority.
Every state government must constitute a committee to fix the ceiling on fees chargeable by professional colleges.
The Scheme was made applicable from the academic years 1993-94.
Significance of the case
The decision in the case remains quite comprehensive as it dealt with matters pertaining to various states of India, many significant laws and interpretations of significant constitutional provisions and principles. It primarily recognised the existence of the right to education and the obligation of the state to provide free and compulsory education to all its citizens till the age of 14 years.
Beyond the age of 14 years, the state’s obligation is dependent on its economic means and development. It also overturned principles set forth by a previous landmark decision given by the Apex Court in the case of Miss Mohini Jain vs. State of Karnataka (1992). As a result of this decision, the 86th Constitutional Amendment Act, 2002 was passed which resulted in the inclusion of Article 21A which explicitly guaranteed the right to education to all Indian citizens.
This decision also laid down the principle that fundamental rights and directive principles of state policies supplement each other. Therefore, this decision holds utmost significance in the Indian legal system as is a valuable precedent.
Conclusion
The matter served as a landmark judgement creating guiding principles regarding the right to education and the right to establish educational institutions. The text of the judgement, however comprehensive, upholds the national policy which states that the commercialisation of education is against the morals and interests of the public. It recognises the importance of education while also recognising the significance of the state’s obligation towards imparting education.
Frequently Asked Questions (FAQs)
Which fundamental rights were recognised by the decision of Unnikrishnan vs. State of Andhra Pradesh?
The judgement recognised a fundamental right to education with certain limitations and a fundamental right to establish an educational institution without a right that guarantees affiliation or recognition for the said institution.
What are the limitations imposed on the right to education?
The Supreme Court of India held that every citizen of India has a right to free education till 14 years of age and beyond that age, the right is subject to the economic capacity and development of the state.
What is the definition of capitation fees as per the Supreme Court of India?
The Supreme Court recognised that unaided private educational institutions need higher fees to meet their expenditure and such a fee shall be fixed by a committee but any amount charged beyond the prescribed fee set by the committee shall be termed as capitation fees.
Is imparting education an occupation, trade, business or profession under Article 19(1)(g)?
As per the Supreme Court ruling, imparting education falls under none of those terms under Article 19(1)(g) as a profit motive cannot be attached to imparting education.
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The rise of e-commerce has transformed the business landscape, offering unmatched convenience and accessibility to consumers worldwide. However, this rapid evolution also brings a host of legal challenges that must be addressed to ensure the integrity and security of online transactions. In India, a robust legal framework is essential for the sustainability and protection of e-commerce activities. This article will explore the key legal issues in Indian e-commerce and online transactions.
First things first, what is e-commerce? E-commerce involves the purchase or sale of products or services through the internet. The e-commerce industry is rapidly growing because it offers easy access to people across nations to sub-urban areas or even in rural areas to buy or sell any product or service through the internet from the comfort of their homes in any part of the world. The rapid growth of e-commerce in the economy includes technological advancements and increased internet accessibility, as smartphones, high-speed internet and secured online payments are very easily accessible to everyone nowadays. Additionally, consumer preferences are changing as modern consumers increasingly prefer the convenience of online shopping over traditional physical stores. When we talk about e-commerce, the key feature includes online payment transactions. Although many platforms offer a cash on delivery option for the sale or purchase through e-commerce, in some cases it’s quite impossible to opt for the option or when any e-commerce platform doesn’t offer a cash on delivery option. Online transactions, being a secured payment option, also welcome financial and cyber fraud or even data privacy issues. The Indian legal framework, including many legislations, ensures data privacy and a secured payment option, so that the trust of customers in e-commerce is maintained.
Overview of e-commerce growth
E-commerce has become a major contributor to the global economy, generating significant revenue and providing a platform for businesses of all sizes to reach global consumers. New job opportunities in various sectors have also been introduced, including logistics, IT, and digital marketing. For businesses, e-commerce removes location-based barriers, which allows even small and medium-sized enterprises to enter international markets. This increased accessibility can lead to greater competition and innovation, benefiting consumers with better products and services. The digital transformation of business has seen a good rise globally. Companies are increasingly adopting digital tools and strategies to stay competitive, including customer relationships, data analytics and traditional retailing. Consumers who prefer e-commerce over physical stores have a greater choice, competitive pricing, and the convenience of shopping from home, as the availability of detailed product information, reviews, and easy return policies enhances the overall shopping experience of consumers globally. While e-commerce offers several advantages, it also poses environmental challenges, like increased packaging waste and carbon emissions from shipping.
Importance of legal framework
The importance of a robust legal framework in this dynamic world of e-commerce, where transactions occur across digital platforms and often between parties in different parts of the world, primarily the key element is trust and confidence of the consumer in the digital marketplace as it protects consumers, ensures data privacy, and promotes fair business practices. It helps prevent online fraud, mandates strong cybersecurity measures, and provides mechanisms for resolving disputes. Additionally, the legal framework facilitates cross-border transactions and aligns it with international standards. Without a proper legal framework, the digital marketplace could be vulnerable to various risks, including fraud, data breaches, and infringement of intellectual property rights. It is essential to provide structure and guidelines for e-commerce activities; therefore, it is important to establish clear and comprehensive laws and regulations that are crucial to safeguarding the interests of both businesses and consumers.
Let’s take a look into the legal frameworks available in India to resolve all the legal issues faced by the audience of e-commerce.
Consumer protection
A strong legal framework ensures that consumers’ rights are protected, fostering trust and confidence in online transactions and resulting in more engagement in e-commerce. A study says that in many large emerging economies, such as China, India, Mexico, Indonesia, etc., the largest proportion of internet users trust the internet and e-commerce. However, many economies still do not trust shopping online because they have heard bad things about it or have no trust; they still prefer traditional physical shopping. These legal frameworks help consumers protect themselves from various forms of online fraud, like identity theft, phishing, and unauthorised transactions. The laws and regulations provide avenues for redress and compensation, which are crucial for consumer protection. In India, the Consumer Protection Act 2019 and the Consumer Protection (E-commerce) Rules, 2020.
Data privacy and security
E-commerce, with its rapid expansion, has brought to the forefront the need for robust data protection and privacy laws. India, recognising this criticality, has established a comprehensive legal framework to safeguard the personal data of consumers engaging in online transactions.
The Information Technology Act, 2000, serves as the foundational legislation for regulating e-commerce and data protection in India. This act provides a broad framework for the collection, storage, processing, and transmission of electronic data. It mandates that businesses obtain consent from consumers before collecting and processing their personal information. Additionally, the act requires businesses to implement reasonable security measures to protect consumer data from unauthorised access, use, or disclosure.
To further strengthen data protection in the digital age, the Indian government introduced the Digital Personal Data Protection Act, 2023. This act builds upon the Information Technology Act and establishes specific standards and guidelines for businesses handling consumer data. It mandates businesses to obtain explicit consent from consumers for the collection and processing of their personal data. The act also requires businesses to provide consumers with clear and concise information about how their data will be used and shared.
Furthermore, the Digital Personal Data Protection Act, 2023, requires businesses to ensure the accuracy of consumer data and gives consumers the right to access, rectify, erase, or restrict the processing of their personal data. Businesses must also establish grievance redressal mechanisms to address consumer concerns related to data protection. To oversee the implementation of the act, the government has designated a Data Protection Authority, which will ensure compliance and investigate any violations of the act.
E-commerce businesses operating in India must comply with both the Information Technology Act, 2000, and the Digital Personal Data Protection Act, 2023. This includes obtaining consent for data processing, ensuring data accuracy, providing itemised notices, and facilitating grievance redressal through a representative or Data Protection Officer (DPO). By adhering to these legal requirements, e-commerce businesses can demonstrate their commitment to protecting consumer privacy and building trust with their customers. Additionally, the third-party data must be protected by the businesses that are handling that user data and those businesses must have strong security measures in place to prevent data breaches. Indian e-commerce businesses must implement robust cybersecurity measures to protect against data breaches and cyber crimes and compliance with these regulations is essential for maintaining consumer trust.
Intellectual property rights
E-commerce commonly faces copyrights and trademark issues, and protecting intellectual property is very crucial for protecting a business’ commercial interests to save themselves from being copied or distributed everywhere illegally. It also protects other vital components like networks, routers, plans, programmes, chips, and other things. India, as a signatory to the Trade-Related Intellectual Property Rights (TRIPS) agreements, which set minimum standards for Intellectual Property regulation among World Trade Organisation (WTO) member nations, has a robust framework protecting intellectual property rights. Patents can cover various e-commerce innovations, such as Amazon’s transaction authentication method. Trademarks build brand recognition and prevent unauthorised use, while copyrights protect creative content and software, ensuring penalties for infringement. Unauthorised resellers can undercut prices and harm a brand’s reputation, by ensuring the trademark is registered, verifying unauthorised sales, and sending a cease-and-desist letter, if infringement is found. Additionally, resolving domain name disputes in India involves adherence to specific legal procedures, which ensure fair outcomes and prevent issues like cybersquatting.
Contract law
E-contracts, short for electronic contracts, serve as the cornerstone of e-commerce within the Indian legal framework. Their significance lies in their ability to facilitate seamless transactions by enabling parties to mutually agree upon terms and conditions digitally. However, the validity and enforceability of e-contracts are contingent upon adherence to certain essential criteria.
Firstly, mutual consent is paramount in e-contracts. Both parties involved in the transaction must express their unequivocal agreement with the terms and conditions outlined in the contract. This consent can be conveyed through electronic means such as clicking on an “I agree” button or ticking a checkbox. It’s crucial that both parties have a clear understanding of the contractual terms and voluntarily provide their consent.
Secondly, lawful consideration is another vital element of e-contracts. Consideration refers to the exchange of something of value between the parties involved. In the context of e-commerce, consideration can take various forms, such as the exchange of goods or services, or even the promise to perform a specific act. The presence of lawful consideration establishes a legally binding agreement between the parties.
Thirdly, proper documentation is fundamental to the validity of e-contracts. The contract terms and conditions must be clearly outlined in a written or electronic document. This document serves as evidence of the agreement between the parties and is essential for resolving any potential disputes. It’s important for both parties to carefully review and understand the terms and conditions before entering into an e-contract.
By fulfilling these criteria, e-contracts gain legal recognition and enforceability within the Indian legal framework. They offer a convenient and efficient means of conducting business transactions in the digital age, while ensuring that the rights and obligations of both parties are protected. This streamline online transactions and builds confidence among users. In the event of disputes arising from e-commerce transactions, India offers various resolution avenues, including mediation, arbitration, and legal proceedings. These mechanisms ensure that grievances are addressed promptly and fairly, maintaining trust in online transitions, as these resolutions are crucial for sustaining the growth and reliability of the e-commerce sector.
Payment systems and financial regulations
Secured payment processing is also very vital for e-commerce as it builds the trust of the audience, and e-commerce platforms gain more popularity and customers, when they build trust in secured and easy payment methods. In India, we have regulations set by the Reserve Bank of India (RBI), which mandate stringent security measures to protect consumer financial information. Additionally, e-commerce businesses in India must comply with anti-money laundering regulations to prevent laundering and terrorist financing. This involves implementing due diligence processes and reporting mechanisms.
Licensing and taxes
E-commerce platforms provide independent sellers with market access, but portal owners must comply with licencing norms under the Shops and Establishments Act as they have to stock up their products at a store or warehouse. Additionally, they must adhere to Goods & Services Tax (GST) regulations, which include some key elements like registering the portal, collecting taxes, maintaining proper documentation for the business, and filing returns. Non-compliance with these above stated requirements can result in substantial interest and penalties that can be imposed on the activities of the business.
Cross-border transactions and international laws
Cross-border e-commerce involves navigating complex and diverse legal systems across different countries. To facilitate seamless trade and ensure compliance with relevant laws, clear guidelines and international standards play a crucial role.
In India, several key legal frameworks govern cross-border e-commerce activities:
Customs Act, 1962: This act regulates the import and export of goods and outlines the procedures for customs clearance. It ensures that customs duties are levied and collected on imported goods and that goods exported from India comply with international standards and regulations.
Goods & Services Tax (GST), 2017: GST is a comprehensive indirect tax levied on the supply of goods and services within India. Cross-border e-commerce businesses must comply with GST regulations by registering with the GST authorities, filing GST returns, and paying applicable taxes on their sales.
Import & Export Code (IEC) Certification: An IEC is a unique 10-digit code issued by the Directorate General of Foreign Trade (DGFT) to Indian entities engaged in import and export activities. It serves as a registration and identification number for businesses involved in cross-border trade.
Export-Import Policy (EXIM Policy): The EXIM Policy, formulated by the DGFT, provides guidelines and regulations governing the import and export of goods and services in India. It includes information on prohibited and restricted items, export incentives, and import tariffs.
In addition to these domestic laws, Indian e-commerce businesses also need to be aware of and comply with international taxation laws. This includes understanding and adhering to GST regulations for domestic transactions, as well as managing taxes for international sales.
Effective cross-border e-commerce requires a deep understanding of these legal frameworks and international taxation laws. Businesses must ensure that their operations are compliant with all applicable regulations to avoid penalties and maintain a positive reputation in the global marketplace.
International laws such as the General Data Protection Regulation (GDPR) and the California Privacy Act (CCPA) have a profound impact on e-commerce operations. These laws aim to protect individuals’ privacy rights by regulating how businesses collect, use, store, and share personal data. The GDPR applies to any organisation that processes the personal data of individuals in the European Union, regardless of its location. The CCPA applies to businesses that operate in California or that collect the personal data of California residents.
Both the GDPR and the CCPA have specific requirements for e-commerce businesses. For example, these laws require businesses to provide individuals with clear and concise information about how their personal data will be used. Businesses must also obtain individuals’ consent before collecting or processing their personal data. Additionally, businesses must have appropriate security measures in place to protect personal data from unauthorised access, use, or disclosure.
The GDPR and the CCPA also impose restrictions on how long businesses can retain personal data. Businesses must delete or de-identify personal data that is no longer needed for the purposes for which it was collected. Failure to comply with the GDPR or the CCPA can result in significant fines and other penalties.
In addition to international privacy laws, there are also industry-specific regulations that impact e-commerce operations. For example, the Health Insurance Portability and Accountability Act (HIPAA) imposes specific requirements on businesses that handle protected health information (PHI). PHI includes any information that can be used to identify an individual and is related to their health or healthcare.
The Payment Card Industry Data Security Standard (PCI DSS) imposes specific requirements on businesses that accept credit card payments. PCI DSS aims to protect cardholder data from unauthorised access, use, or disclosure.
E-commerce businesses that operate in the healthcare or finance sectors must comply with both HIPAA and PCI DSS in addition to the GDPR and the CCPA. Failure to comply with these laws can result in significant fines and other penalties.
It is important for e-commerce businesses to be aware of the international laws and industry-specific regulations that impact their operations. Businesses should develop and implement policies and procedures to ensure that they are in compliance with these laws.
Product liability
Product liability is another key legal issue in e-commerce, especially for businesses sourcing products from third-party vendors. The risk of facing product liability lawsuits is significant. Clients have the right to sue e-commerce businesses for product defects, particularly if warranties and liabilities are not clearly defined. It will ensure clear and comprehensive policies regarding product warranties and liabilities and is crucial for mitigating these risks and protecting the interests of both businesses and consumers in the digital marketplace.
Emerging legal issues
In this rapid advancement of technologies, e-commerce nowadays also faces issues involving the rising blockchain technology and cryptocurrencies. Indian laws are evolving to address these technologies, ensuring businesses can navigate these emerging issues responsibly. Additionally, the integration of artificial intelligence (AI) in e-commerce raises legal considerations around liability, data protection, and ethics. Indian businesses must address these issues to ensure responsible AI use.
Conclusion
The evolving landscape of e-commerce in India requires businesses to prioritise legal compliance to ensure secure and sustainable online transactions. By adhering to a robust legal framework, businesses can protect consumer rights, ensure data privacy, and foster trust in the digital marketplace. As the industry continues to evolve, addressing the accompanying challenges, such as regulatory compliance and sustainability, will be crucial to ensuring its long-term positive impact. Moreover, e-commerce offers a better platform for promoting a sustainable environment, as these platforms can adopt eco-friendly practices. Ultimately, everything in this article is fundamentally tied to customer trust. Customers must have confidence in the safety, reliability, and integrity of e-commerce platforms and online transactions. Effective legal frameworks and robust compliance measures are essential for maintaining this trust, as they reassure consumers that their rights and interests are protected.
The article is written by Vanshika Shukla and aims to discuss this case at length as it delivered an important ruling regarding offer and acceptance in case of tenders. This article attempts to direct one’s attention to the essential parts of a case i.e., the facts, arguments, provisions, case laws, judgement and rationale that follow, as well as a case analysis. This article also discusses Articles 226 and 229 of the Constitution, which are the heart of the case.
Table of Contents
Introduction
Contracts play a major role in our day-to-day life, be it in the form of bank loans, insurance policies, or privacy policies. Even something as simple as downloading an app is equivalent to entering into a contract. However, every contract is not considered valid unless and until it contains the essential elements. According to the Indian Contract Act, 1872, a contract shall be considered valid only when one party makes an offer and the other party accepts the offer. Therefore, offer and acceptance are the essential elements of a contract.
In the case of Rajendra Kumar Verma vs. State of Madhya Pradesh and Ors. (1972), the importance of offer and acceptance was pivotal in determining whether a valid contract existed between the parties. The case involved a tender submission by Rajendra Kumar Verma to supply goods, which constituted the offer, and the State’s response, which was scrutinised to see if it amounted to a clear and unequivocal acceptance. This analysis explores the functioning of this offer and acceptance with regard to government tenders as well as the contractual requirements for contract execution of Article 299.
Details of the case
Case name: Rajendra Kumar Verma vs. State of Madhya Pradesh and Ors.
Important provisions: Article 226 and Article 299 of the Constitution of India
Facts of the case
The respondent (State of Madhya Pradesh) issued an advertisement inviting tenders for the sale of tendu leaves (Patta) from Budni. Pursuant to this advertisement, on 25th March 1969, the petitioner (Rajendra Kumar Verma) accepted the tender at the rate of Rs. 38.25 p per bag. He also made a security deposit of a specific amount for the tender. The tenders were scheduled to open on 9th April 1969, but just prior to the opening, the petitioner withdrew his tender through an application and requested that since he had withdrawn it beforehand, his tender should not be opened or reviewed.
The tender, however, was opened and accepted by the Government as it was the only tender received for that particular unit. Since the petitioner failed to execute the tender, a suit had been initiated for the recovery of Rs. 24,846.12 p on the claim that the Tendu leaves from the unit were sold to another party, resulting in the remainder being recoverable from the petitioner.
The petitioner then filed a writ petition under Article 226 of the Constitution of India, challenging the recovery being made against him by the respondent.
Issues raised
Can an offer be revoked/withdrawn before the notification of acceptance has been received?
Is there any tender from the side of the petitioner as he had withdrawn his tender before it was opened?
Arguments by the parties
Petitioner
The petitioner presented two arguments before the Hon’ble Madhya Pradesh High Court. The first argument being that he withdrew his tender before it was opened and approved. According to him, any consideration of the proposal after the withdrawal is to be considered as invalid. Thus, at the time of opening, there was no valid tender from the side of the petitioner.
The second argument was that since no valid contract had been entered into between the parties as per Article 299 of the Constitution, an enforceable contract wouldn’t exist between them as well. The petitioner claimed that no recovery can be made against him on the basis of the existence of a contract as no valid contract existed between the parties.
Respondent
The respondent i.e. the State of Madhya Pradesh countered the arguments presented by the petitioner by the following contentions. The first contention was that according to condition No. 10(b)(i) of the tender, a tender may be withdrawn prior to acceptance only in situations where there is at least one valid tender for consideration of that particular unit. In this particular case, there wasn’t any other valid tender presented, thus the petitioner’s tender could not be withdrawn.
The case laws and provisions discussed within the case, play an important role in reaching to the conclusion. In order to understand and analyse the case, these provisions and case laws need to be understood beforehand. The provisions and cases referred to in this case law have been listed as follows:
Provisions discussed
Article 226 of the Constitution
Article 226 of the Constitution provides the High Court with the power to issue writs to any person or authority, including Government in appropriate cases for enforcing our fundamental rights or for any other purpose.
Article 226(1) provides every High Court the power to issue orders or writs. The writs include habeas corpus, mandamus, prohibition, quo warranto, and certiorari as mentioned in Article 32 of the Constitution.
Article 226(2) provides every High Court the power to issue writs or orders to any person, government, or authority.
Present within its jurisdiction or,
Outside its local jurisdiction if the facts of the cause of action arise either entirely or partially inside its territorial jurisdiction.
Article 226(3) states that if a High Court issues an interim order against a party in the form of an injunction, stay, or any other manner, that party may apply to the court for the order to be vacated, and the application must be resolved by the High Court within two weeks.
Article 226(4) states that the power conferred by this article to a High Court shall not reduce the authority granted to the Supreme Court by Article 32(2).
Article 299 of the Constitution
Article 299(1) of the Constitution asserts that all contracts issued in the name of the Union or Governor of the State must clearly state that they were made by the President or Governor, respectively, and that they will be performed by authorised people as per the direction of the President or the Governor.
Article 299(2) states about legal protection by assuring that neither the President nor the Governor, or anybody acting on their behalf, will be held personally accountable for any contracts or property promises made in their official role.
Case Laws discussed
K. P. Chowdhary vs. State Of Madhya Pradesh & Ors (1966)
In this case, the lordships of the Supreme Court highlighted the importance of Article 299(1) of the Constitution. The court stated that an implied contract shall cease to exist between the Government and another party as it would render the Article 299 ineffective. Further if implied contracts are allowed then any contract between the Government and another person which was not executed as per Article 299(1) may get away by simply claiming that an implied contract was formed between the parties from the facts and circumstances of the particular case.
Century Spinning and Manufacturing Company Ltd. vs. The Ulhasnagar Municipal Council and Anr. (1971)
In this case, the Supreme Court ruled that public bodies, just as private individuals, are required to honour their promises, especially in cases where others have relied on these promises and it changes their position to their detriment. This obligation, though enforceable against private individuals through contract law, could be enforced against a public body in equity when a promise has been made, even if not formally executed in the statutory form required by law.
The court in Rajendra Kumar Verma’s case, however, distinguished this precedent by highlighting that the Century Spinning case involved the imposition of a tax that affected the fundamental rights of the factory owners to conduct their business, and the principles of equity were invoked to prevent unreasonable restrictions. The court held that the Century Spinning case was not applicable to the present case, which was governed by contract law and the provisions of Article 299 of the Constitution, and it dealt with contracts entered into by the government. The principles of equity used in the Century Spinning case, therefore, did not apply because the case at hand dealt strictly with contract formation and enforcement.
Judgement by the court
The judgement was given by a division bench composed of Judges Bishambar Dayal and A.P. Sen.
After assessing the facts, circumstances and listening to the contentions presented by both the sides, the bench came to the conclusion that a person who makes the offer/tender is entitled to withdraw the offer/tender before its acceptance is made known to the other party. The court further stated that merely showing a clause in the tender notice cannot be considered as a valid form of argument to take away the legal right of the petitioner.
Thus, the court determined that since there was no implied or explicit contract between the parties the writ petition would be allowed. Lastly, both the parties had to bear their own cost, and the outstanding amount of security deposit was refunded to the petitioner by the respondent.
Rationale behind the judgement
The division bench reviewed the facts and circumstances as well as the arguments made by the counsels of both parties, i.e., the respondent and the appellant and came to the conclusion that the petitioner had a legal right to withdraw his tender before it was opened and accepted by the respondent. The petitioner withdrew his tender prior to the opening which means that, by the time the tenders were actually reviewed, there was no valid tender from the petitioner’s side.
The court referred to Article 299 of the Constitution and stated its importance for contract execution. According to the provision, all the contracts made by the government clearly stated that they were made by the President or Governor and had to be executed in the way as authorised. In this case, the petitioner’s tender did not match up to the requirements given in the provision, thus it could not be considered as a valid contract. Therefore, since the contract in itself lacked the validity and wasn’t properly executed any recovery claims against the tender would also be considered invalid.
The argument presented by the respondent with regard to condition No. 10(b)(i) of the tender notice which stated that the petitioner’s tender could not be withdrawn as it was the only one submitted was rejected as contractual conditions cannot override fundamental legal rights.
The court disagreed with the respondents’ argument that the terms of the tender notice should be treated as legal mandates under Section 12 of the M.P. Tendu Patta (Vyapar Viniyaman) Adhiniyam of 1964 as no specific rules had been established for the disposal of Tendu leaves under this Section. The court pointed out that the tender notice was merely an executive form of direction, it did not possess any legal status. Thus, the terms stated in the tender notice cannot be enforced as a mandatory legal provision.
Lastly, the case cited by the respondent i.e. Century Spinning and Manufacturing Company Ltd. and Anr. vs. The Ulhasnagar Municipal Council and Anr. (1971) was found to be inapplicable in this particular case because of the differing circumstances. The cited case deals with a public body’s undertaking which affects the fundamental rights, whereas the current case is with regard to the procedural requirements for government contracts under Article 299. The principles from the Century Spinning case were thus irrelevant to the issues at hand.
Due to these reasons, the High Court came to the decision that the petitioner’s writ petition be allowed and the outstanding amount to be collected from the petitioner was quashed and refunded.
Analysis of the case
The case highlights the concept of offer and acceptance within contract law. If one has to state particularly, it addresses the legal implications of withdrawing an offer before the acceptance. In this particular case, the petitioner i.e. Rajendra Kumar Verma withdrew his tender before it was formally opened or reviewed by the respondent. As per Section 5 of the Indian Contract, an offeror has the right to withdraw their offer at any time before acceptance. The court upheld this principle and confirmed that since the petitioner withdrew his offer before its opening, there was no valid offer to be accepted by the respondent. Thus no valid contract could be formed.
A contract will only be considered valid, if there’s an offer, acceptance of that offer, and consideration. This case highlights the elements and their importance in a valid contract for it to be considered legally valid. Since the petitioner had withdrawn his offer, no acceptance could have been possible in any circumstance, thus, no contract could have been formed. This conclusion was reaffirmed by the court’s ruling that no binding contract can exist without the existence of a valid offer at the time of acceptance.
The requirement under Article 299 of the Constitution for government contracts to be formally executed is crucial in understanding the enforceability of contracts. The requirement presents an essential point i.e., even if an offer has been valid and accepted, if it isn’t in compliance with the requirements under Article 299, the contract will not be binding or enforceable. Thus, the importance of adherence to constitutional and procedural requirements in order to form a valid and enforceable contract with the government was highlighted in this case.
Conclusion
This case analysis shows the court’s approach towards fundamental concepts of contract law and their importance in regard with the constitutional requirements. The judgement given by the court is in favour of the principle that an offer can be withdrawn before acceptance without resulting in an enforceable contract as stated in Section 5 of the Indian Contract. This is a clear example of how offer and acceptance must be conducted in accordance with legal standards to enable a valid contract formation.
The judgement given within this case serves as a valuable precedent for future cases concerning contract formation, particularly regarding the principles of offer, acceptance, and revocation. This ruling emphasises that, until acceptance is communicated, no binding agreement exists, and the offeror is within their rights to withdraw the offer. Future cases can rely on this decision to underscore the importance of mutual agreement and timely acceptance in forming enforceable contracts, ensuring that the foundational principles of contract law are consistently applied across legal disputes.
Frequently Asked Questions (FAQs)
What is the definition of offer & acceptance as per the Indian Contract Act, 1872?
According to Section 2(a) of the Indian Contract Act 1872, offer is explained as to when one person will indicate to another person his will to do or not do something (abstain) with the aim of obtaining the assent of such person to such an act or abstinence, he is said to make a proposal or an offer.
Section 2(b) of the Indian Contract Act 1872 defines acceptance as to when the person to whom the proposal is made indicates his assent thereto, the offer is said to be accepted. Thus, when the proposal is accepted, it becomes a promise.
What are the elements of a valid offer as per the Indian Contract Act, 1872?
According to the Indian Contracts Act, 1872, the following are the elements of a valid offer:
Consist of two parties.
Communicated clearly.
The offer must consist of clear and definite terms and be stated in an understandable way for all the parties involved.
Include an expiry date for the offer and product or service specifications.
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This article is written by Almana Singh. It deals with the analysis of a judgement pronounced by the Hon’ble Supreme Court of India in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors., (2011) 11 SCC 1 wherein the question of the right to property of a child born out of a void marriage or voidable marriage was answered. It explores whether such children are entitled to self-acquired property or ancestral property of the parents or both.
Table of Contents
Introduction
When two adults choose to have a child out of wedlock or under a void/voidable marriage, the children born from such relationships face significant societal stigma despite having no control over the circumstances of their birth. In traditional Hindu communities, such children are unfairly labelled as “illegitimate” and they face severe limitations on their rights related to inheritance and property. The Supreme Court of India tackled this issue on two separate occasions. This article aims to provide a thorough analysis of the factual background, arguments advanced and a brief the judgements pronounced in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors.Firstly, in 2011 the two-judge bench referred the case to a larger bench and subsequently in 2023, the court discussed the interpretation and legislative intent behind the provisions involved in this case.
Details of the case
Name of the case: Revanasiddappa and Ors. vs. Mallikarjun and Ors.
Petitioners: Revanasiddappa and Ors.
Respondents: Mallikarjun and Ors.
Court: Hon’ble Supreme Court of India
Case type: Civil Appeal
Date of Judgement: 01st September 2023
Bench:
2011 judgement: Justice G.S. Singhvi and Justice A.K. Ganguly
2023 judgement: Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra
The husband, who is the first defendant, has two wives along with two children from each wife. The first wife and her children are the plaintiffs in the case and the second wife along with the husband are the defendants.
The first wife and her two children filed a suit for partition and separate possession against the defendants asking for 1/4th share each in the ancestral property which is given to the husband by way of grant. The plaintiffs argued that the husband’s marriage with the second wife was invalid as it had happened when the first marriage was subsisting and children born out of the second marriage would not be entitled to ancestral property as they were not part of the coparcenary.
Facts of the case
The first wife, along with her two children, filed a suit for partition alleging that they are entitled to 1/4th share each in the ancestral property of the husband and that the second marriage with the second wife is invalid and her children are not part of the coparcenary and hence, are not entitled to the ancestral property.
Trial Court
The Trial Court, by its judgement dated 28 July 2005, held that the husband was neither able to prove the existence of an oral partition nor that a divorce had taken place when he married the second wife. The second marriage was declared void by the Trial Court. The plaintiffs and the husband were held to be entitled to 1/4th share each in all the suit properties.
First Appellate Court
Aggrieved by the Trial Court’s judgement, the defendants filed an appeal in the First Appellate Court. After reconsideration and re-appreciating the entire evidence, the Appellate Court affirmed the findings of the Trial Court. However, the Trial Court’s decision that illegitimate children born out of void marriage or situations of similar nature are not entitled to share in coparcenary property was reversed while referring to a judgement pronounced by a division bench of the Karnataka High Court in the case of Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005). The Appellate Court held that children born out of void marriage are on the same pedestal as that of coparceners and enjoy the same rights as them. The plaintiffs and the defendants were entitled to 1/6th share each in the ancestral properties.
The plaintiffs, aggrieved by the Appellate Court’s judgement, filed an appeal in the High Court of Karnataka.
High Court of Karnataka
There were two questions before the High Court,
Whether the illegitimate children born out of void marriage are regarded as coparceners according to the Hindu Marriage Act, 1956.
Whether during partition between the coparceners of the ancestral property, illegitimate children are entitled to a share in the said property.
The High Court cited the case of Sri Kenchegowda vs. K.B. Krishnappa and Ors. (2008) and observed that both questions have been covered under this case. The High Court opined that both the children born out of the second marriage were illegitimate, and the marriage itself was void. Section 16(3) of the Hindu Marriage Act, 1955 makes it clear that illegitimate children are entitled to self-acquired property only and not coparcenary or ancestral property. The first and second defendants were part of the coparcenary and had the right to claim partition whenever they deemed fit. The High Court affirmed the orders of the Trial Court and First Appellate Court and allowed the appeal. First and second plaintiffs i.e. the children from the first wife along with the husband, were entitled to 1/3rd share each in the suit property.
Aggrieved by the judgement of the High Court of Karnataka, the second and third defendants i.e. children of the second wife, filed an appeal in the Supreme Court, and the judgement of the same was pronounced on 31March 2011.
Issues involved
The question dealt with by the Supreme Court was whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited to the self-acquired property of the parents in accordance with Section 16(3) of the Hindu Marriage Act, 1955?
Laws discussed
This case went into deep discussions about several provisions under the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956. The most cited Sections by the Supreme Court in both of the judgements have been briefed below.
Hindu Marriage Act, 1955
Section 5 of Hindu Marriage Act
A marriage between two Hindus will be considered valid and solemnised if the conditions provided under Section 5 are fulfilled.
Neither individual should have a living spouse at the time of the marriage.
At the time of the marriage, neither party should be unable to give valid consent due to unsoundness of mind
Although can give consent but suffer from a mental disorder which makes them unfit for marriage and child-bearing
Has experienced constant and repeated episodes of insanity
Males should be at least 21 years old and females should be at least 18 years old.
Individuals should not be in prohibited degrees of relationship. However, this condition can be overridden by a custom or a tradition that allows such marriages.
Individuals should not be Sapindas (close blood relatives). However, this condition can be overridden by a custom or a tradition which permits such marriages.
Section 11 of Hindu Marriage Act
This Section talks about the nullity of void marriages. After the enactment of the Hindu Marriage Act of 1956, any marriage that violates the conditions of valid marriage laid down in Section 5 will be considered null and void. Either spouse can request a court of competent jurisdiction to declare such marriage the same through a formal decree of nullity.
Section 12 of Hindu Marriage Act
Section 12 talks about voidable marriages and has two sub-sections which are briefed below.
Any marriage that is solemnised before or after the commencement of this Act can be annulled by a decree of nullity on the basis of the following grounds:
The marriage was not consummated due to the impotence of the respondent.
The marriage contravenes the condition specified in clause (ii) of Section 5 i.e. unsoundness of mind, mental disorder or repeated episodes of insanity.
If the consent of the petitioner or the guardian of a minor was obtained through force or fraudulent means regarding the nature of the ceremony or any other significant fact or circumstance regarding the respondent.
The respondent was pregnant by someone other than the petitioner at the time of their marriage.
2. Despite the grounds mentioned in sub-section (1), no petition for nullity of marriage will be entertained in the following cases:
On the ground specified in clause (c) of Sub-Section (1),
No petition of nullity of marriage is entertained if the petition is filed more than one year after the force ceased to exist or the fraud was discovered.
If the petitioner, with their full valid consent, lived with the other party as their husband or wife, whatever the case might be, post the cessation of force or discovery of fraud.
On the ground specified in clause (d) of Sub-Section (1), unless the court is satisfied that:
The petitioner was unaware of the facts at the time of marriage.
If marriage is solemnised before the commencement of the Hindu Marriage Act, 1955 or proceedings are instituted within 1 year of commencement of the Act and for marriages solemnised after the commencement, the deadline would be one year from the date of marriage.
No marital intercourse with the consent of the petitioner has taken place since the discovery of the alleged ground.
Section 16 of Hindu Marriage Act
Sub-Sections (1) and (2) of Section 16 confers legitimacy onto the children born out of void and voidable marriages, while Sub-Section (3) limits their right to entitlement of property.
Section 16(1) states that regardless of a marriage being null and void under Section 11, any child from such marriage would be legitimate. This applies whether the child was born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976). It also applies whether or not a decree of nullity has been granted under this Act and whether or not the marriage is declared void through other means.
Section 16(2) states that if a voidable marriage is annulled by a decree under Section 12 and any child conceived or born before the decree who would have been legitimate if the marriage had been dissolved rather than annulled will be considered legitimate despite the decree of nullity.
Section 16(3) states that provisions of sub-sections (1) and (2) do not actually grant any child from void and voidable marriages any property rights other than those from their own parents.
Hindu Succession Act, 1956
The Supreme Court of India referred to Section 6 of the Hindu Succession Act throughout its judgement. Section 6 was majorly amended in 2005 Below is given a thorough explanation of Section 6 pre and post amendment.
Section 6 of Hindu Succession Act, pre-amendment (before 2005)
Section 6 of the Hindu Succession Act, 1956 prior to the amendment, governed the devolution of interest in coparcenary property within a Joint Hindu Family (hereinafter referred to as “JHF”) governed under the Mitakshara school of Hindu law. The Mitakshara school of Hindu law is one of the two major schools of Hindu law. It is a traditional legal system that governs the inheritance and property rights of the JHF.
Before the amendment of 2005, the interest of a male Hindu in his coparcenary property upon his death would devolve in accordance with the rule of survivorship. However, there existed an exception where if the deceased had a surviving female relative specified under Class 1 of the Schedule attached along with the Hindu Succession Act, 1956 or a male relative specified in that class who claimed through such female relative. In such cases, the interest of the deceased would devolve via testamentary or intestate succession and not by rule of survivorship.
Explanation 1 of Section 6 established a legal fiction where the partition would take place in such a manner that it was done right before the death of the Mitakshara coparcener, and irrespective of his death, he is entitled to his claim.
Explanation 2 clarified that those separated from the coparcenary before the deceased’s death could not claim their share in the interest of the deceased.
Section 6 of Hindu Succession Act, post-amendment (after 2005)
The amendment brought by Act 39 of 2005, which was made effective from 09 September 2005 significantly altered Section 6.
The amended Section 6(1) granted daughters the same rights as sons in coparcenary property within a JHF governed by Mitakshara school. It stated that from the commencement of the Hindu Succession (Amendment) Act, 2005 daughters would by birth become coparceners and have the same and equal rights and liabilities as sons. This amendment was aimed to eliminate gender discrimination deep-rooted in the earlier provision by allowing daughters an equal right to ancestral property as their male counterparts.
The proviso of this section stated that any disposition or alienation of the property, which also includes testamentary disposition which occurred prior to 20 December 2004, would remain unaffected. This amendment was aimed to promote and uphold the principles of gender equality.
Constitution of India
The Supreme Court, in both the judgements of 2011 and 2023, made references to Article 300A of the Constitution of India.
Article 300A of the Constitution
It guarantees that no person shall be deprived of their property except by authority of law. This provision was introduced in the Constitution of India by the Constitution (44th Amendment) Act, 1978, which also repealed Article 19(1)(f) and restructured Article 31(1) into Article 300A by placing it in Chapter IV of Part 12 of the Constitution. Article 300A makes it abundantly clear that while the right to property is not a fundamental right, it remains a constitutional right under the Constitution of India.
Judgement in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)
The Supreme Court cited Section 16 of the Hindu Marriage Act, 1955 and opined that a child of a void or voidable marriage can only claim rights on the self-acquired property of the parents and nothing else. However, on a thorough reading of Section 16, it is rather interesting to note that the legislature has used the word “property”, which has made the ambit of the Section broad and generic. The word “property” can include self-acquired property or ancestral property. It has not been specified.
Prior to the enactment of Section 16(3), this issue of illegitimate children born out of void or voidable marriage being entitled to self-acquired property or ancestral property was discussed through a number of cases, and it was acknowledged that the illegitimate children of Shudras have right in father’s coparcenary property to an extent. The court cited several cases prior to the enactment of Section 16(3), which affirm the rights of illegitimate children. The court was of the opinion that Section 16 was introduced with the intent to bring a change and remove the stigma attached to the illegitimacy of children born out of void or voidable marriage.
The court then cited 3 cases, namely, Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors.(2002), Neelamma and Ors. vs. Sarojamma and Ors.(2006), and Bharatha Matha and Anr. vs. R. Vijaya Renganathan and Ors. (2010), all of which have been briefed under the sub-heading “Precedents referred to by the court in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)”. These judgements dealt with the issue of property and the extent to which illegitimate children are entitled to shares and rights in the said property. The court was of the opinion that these cases opted for a narrow interpretation of Section 16. The legislature used the word “property” in clause 3 of Section 16 and is silent as to whether it entails ancestral property, self-acquired property of the parents or both.
Constitutional validity of Section 16(3)
The Supreme Court opined that enactment of Section 16(3) means that illegitimate children are not entitled to any property rights from anyone other than their parents. However, this restriction is not applicable to parents’ property. Section 16(1) and Section 16(2) affirm that illegitimate children are at par with legitimate children and are entitled to rights in their parent’s property, whether self-acquired or ancestral and should not be discriminated against. The restriction under Section 16(3) is only applicable to property from individuals other than their parents. The constitutional validity of Section 16(3) was challenged in the Supreme Court in the case of Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. vs. K. Devi and Ors. (1996). The court upheld the law and stated that the Hindu Marriage Act, 1955, is a beneficial legislation that is aimed at advancing social reforms by granting legitimacy to children born from void or voidable marriage. In paragraph 75 of the judgement in the above-mentioned case, the court noted that Section 16(1) has been amended to operate independently of Sections 11 and 12. This means that children born out of a void marriage would be considered legitimate regardless of the nullification of that marriage in accordance with Section 11. This principle is applicable to children born before or after the amendment. Illegitimate children must be treated as legitimate for all practical purposes, including inheritance from their parents. However, they cannot inherit from other relatives based on this rule given under Section 16(3), and it is limited to parents’ properties only. With this amendment of Section 16(3), the traditional view that children from void and voidable marriages are illegitimate ipso jure, meaning by the law itself, must change completely. This Section aims to promote the idea of removing the stigma of illegitimacy from illegitimate children who are as innocent as any other children.
Coming back to the case at hand, the Supreme Court opined that children from void and voidable marriages can inherit their parent’s property but cannot claim it independently. When ancestral property is divided, the share that goes to their parents transforms into their parent’s self-acquired and absolute property. In accordance with Section 16, there is no reason illegitimate children should not have a share in such property as they are considered equal to legitimate children of a valid marriage. The only limitation is that illegitimate children cannot ask for partition while their parents are alive, and they can only do so after the death of their parents.
The Supreme Court should interpret socially beneficial laws to further their purpose and not hinder it. Article 39(f) of the Constitution of India states that the State should ensure children develop healthily, with freedom and dignity, and are protected against exploitation and abandonment. This principle should be the guiding light for interpretation of Section 16(3). The Supreme Court then referred to Article 300A, which guarantees that no person can be deprived of their property except by law. Although property rights are not fundamental rights, they remain constitutional rights. Section 16(3) does not restrict these rights; rather, it puts a limitation and constrains the property rights to the parent’s property only which can either be self-acquired or ancestral.
The Supreme Court concluded and opined that this matter should be reconsidered by a larger bench and that the case records should be placed before the Chief Justice of India for this purpose.
Precedents referred to by the court
Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005)
In the case of Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005), the Karnataka High Court addressed the question of legitimacy and inheritance rights of children born out of void marriages under the Hindu Marriage Act, 1955. The Trial Court’s decision was upheld, which stated that the first plaintiff was not a legally wedded wife of Kuruvathi Basavarajappa due to his subsisting first marriage, and this would render his second marriage void under Section 11 of the Hindu Marriage Act, 1955. It was noted that children born out of such marriages are considered legitimate under Section 16, and along with this, the court observed that in accordance with Section 16(3) of the Hindu Marriage Act, 1955, children born from void and voidable marriages are entitled to their parent’s properties which include parents self-acquired as well as join family or ancestral property.
Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi (2002)
In this case, the plaintiff initiated this suit seeking 1/6th share in Schedule A to D properties and 1/3rd share in Schedule E properties. The ancestral properties were to be divided among Sahadeo Manjhi, Mahadeo Manjhi and their mother, Dukhani Keotin, who all were also the defendants in this case. Sahadeo’s 1/3rd share was further divided into 4 equal parts. Defendants 8 to 11 were deemed ineligible to entitle this share due to the void nature of Sahadeo’s marriage with the 8th defendant. This marriage was deemed void because it had occurred after the enactment of the Hindu Marriage Act, 1955 while his marriage with Smt. Kamli Devi was still subsisting.
During the pendency of the case, Sahadeo passed away. His 1/9th share was now to be devolved upon all his heirs, which include the plaintiff, his daughter, his mother (defendant No. 6), his wife (defendant No. 7), defendant Nos. 9, 10, and 12, along with appellant No. 7 i.e. Sahadeo’s son from his wife, Jinia Keotin. Each of Sahadeo’s eight heirs was entitled to an equal share of 1/72 from the 1/9th share. Dissatisfied by this partition, the second wife, along with her children, filed an appeal.
The counsels for appellants, in this case, argued that children born of void marriages under Section 16 should be treated as at par with the children born out of lawful marriages. The opposing counsel contended that Section 16(3) clearly restricts such inheritance rights to the parents’ property only. The appeal was dismissed and the Lower Court’s decision was upheld. This judgement, pronounced by the Supreme Court of India, affirmed the legislative intent behind Section 16(3).
Neelamma and Ors. vs. Sarojamma and Ors (2006)
In this case, the appellants sought partition and separate possession of their share in the JHF after the death of Kuruvathi Basavarajappa. The 1st plaintiff claimed to be the legally wedded wife of Kuruvathi, and plaintiffs 2 and 3 claimed to be his children. On the other hand, the defendant, Sarijamma, claimed to be Kuruvathi’s legally wedded wife.
The question at hand was whether plaintiffs 2 and 3, as alleged children of Kuruvathi Basavarajappa from a void marriage, are entitled to a share in JHF property. The conflict arose at the interpretation of Section 16(3). The petitioners argued that although the marriage is void, plaintiffs 2 and 3 are entitled to their share in JHF property and on the other hand, the respondents claimed that illegitimate children cannot claim their right to ancestral property and additionally, their rights are restricted to self-acquired property.
The Karnataka High Court took a narrower approach and referred to the Jinia Keotin case, wherein it was held that Section 16(1) and 16(2) enshrine legislative legitimacy, but Section 16(3) limits the rights of illegitimate children.
Bharatha Matha and Anr. vs. R. Vijaya Renganathan and Ors. (2010)
In this case, the appellant’s predecessor, Peria Mariammal, filed a suit in 1975 for property rights and claimed that her brother, Muthu Reddiar, died unmarried and intestate. The defendants in this case contested the suit and claimed that there existed a live-in relationship with Muthu Reddiar and they had rights in Reddiar’s property through their children. The Supreme Court dealt with the issue of whether a marriage between Rengammal and Alagarsami Reddiar was proven and affected the legitimacy of the children along with their right to inherit their property. The Supreme Court went into discussions about the live-in relationship and later ruled that there did not exist any presumptive marriage due to long cohabitation together, and thus, it denied the inheritance rights to the children concerning the coparcenary property.
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. vs. K. Devi and Ors.(1996)
Parayankandiyil Kanhirankunnath Kurungodan Raman Nari died on 09th January 1975 leaving behind a considerable number of properties in Kerala and Tamil Nadu. He had two wives and 14 children. It is to be noted that his 2nd marriage took place while his 1st wife was still alive. The Supreme Court of India found that his 2nd marriage was invalid and deemed the children from that marriage as illegitimate. The court referred to legal fiction in accordance with Section 16(3), which treats all children, including illegitimate children, at par with legitimate children. The court opted for a broader interpretation and held that children from the void 2nd marriage would inherit Raman Nair’s properties in accordance with Section 16(3), and they would be entitled to the shares in JHF property too.
This judgement aligns with the Hindu Marriage Act’s purpose of social reform and granting legitimacy to children born from void marriages. It ensures that these children are not discriminated against merely due to circumstances which led to their birth. This would be unfair and contradictory to the democratic principles of equality enshrined in the Constitution of India.
The Supreme Court in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011) referred to several judgments. It was of the opinion that the Jinia Keotin case, Neelamma case and Bharatha Matha case interpreted Sub-Section 3 of Section 16 in a narrow manner, and the intent behind the Hindu Marriage Act is social reform and gender equality was pushed in the back seat. The court took a different approach to the question of inheritance from that of the above-mentioned cases except for the Parayankandiyal Eravath case where the progressive intent of the legislation was taken into consideration.
Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2023)
Later, the issue was raised before a larger bench, and this section of the article deals with a summary of the judgement pronounced by the Supreme Court of India on 01 September 2023, which was penned by Chief Justice of India, Dr. Dhananjaya Y. Chandrachud.
Issues raised
Whether the intent of the statute is to confer legitimacy on an illegitimate child under Section 16 that, in a way, makes them coparceners and allows them to claim a share in the partition?
According to Section 16(3), children with legislative legitimacy can only claim rights on their parent’s property. Therefore, at what point does a specific property become the property of parents?
Judgement
The summary of the judgement pronounced in 2023 has been given below.
Under Section 16(1), a child from a marriage which is null and void under Section 11 is ensured legislative legitimacy despite the following conditions.
Firstly, whether the child was born before or after the commencement of the 1976 Amendment;
Secondly, whether a decree of nullity is issued for that marriage under the Act or if the marriage is declared null through means other than a petition.
Sections 16(1) and 16(2) confer legitimacy on children, where they are entitled to their parent’s property only and not any third person.
When interpreting Section 3(1)(j) of the Hindu Succession Act, 1956 it is imperative that legitimacy conferred by Section 16 of the Hindu Marriage Act, 1955 is considered and a child conferred legislative legitimacy would be covered under the definition of ‘related by legitimate kinship’ and cannot be considered illegitimate for the purposes of Section 3(1)(j).
Section 6 of the Hindu Succession Act, 1956 recognizes the concept of JHF governed under Mitakshara school along with the concepts of coparceners. By the amendment of Section 6, equal rights have been granted to daughters and sons to create more gender-equal laws.
Section 6 of the Hindu Succession Act, 1956 outlines devolution of interest in coparcenary property. Prior to the 2005 amendment, the rule of survivorship was applicable wherein a male Hindu after his death would pass his share to the remaining coparceners. The only exception to this rule was that if the deceased left behind a female relative or male relative claiming through a female in Class I of schedule, in these cases the property would devolve by testamentary or intestate succession. After 2005, Section 6 was amended and the rule of survivorship was entirely scrapped and now succession takes place in accordance with testamentary succession or intestate succession rules.
Section 6(3) of the Hindu Succession Act, 1956 post-amendment introduces a legal fiction wherein it is assumed that the deceased’s property had already been partitioned right before his death, regardless of whether he could claim a partition in his lifetime or not. Once the share of the deceased has been ascertained his heirs including the children who have been conferred legitimacy under Section 16 will be entitled to their share.
The provisions of the Hindu Succession Act, 1956 and Hindu Marriage Act, 1955 work in harmony where a child who is conferred legitimacy under Section 16(1) and Section 16(2) will not be entitled to rights in the property of someone other than their parents in accordance with Section 16(3).
The Supreme Court concluded the judgement by ordering that the cases will now be listed before a two-judge bench in accordance with the assigned work for disposal. Many cases were pending due to this reference. The Registrar (Judicial) of the Supreme Court of India was directed to circulate a copy of the judgement to the Registrars (judicial) of all the High Courts.
Critical analysis of Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)
The judgments of 2011 and 2023 present contrasting interpretations of Section 16 of the Hindu Marriage Act, 1955. The 2011 judgement held that Section 16(3) has broad jurisdiction, and it allows for children born out of void and voidable marriages to inherit their parents’ coparcenary property. However, the 2023 judgement narrowed this interpretation and opined that Section 16(3)’s negative language restricts the inheritance rights and allows the children rights in the self-acquired property of the parents and no other person.
On the one hand, Sections 16(1) and 16(2) aim to destigmatize and grant legislative legitimacy to these children so that they can hold a position equal to the legitimate children born out of valid marriage. This disparity undermines the social reforms and gender equality intended by the legislation.
The principles and ideals of equality are not followed in this interpretation. It is unjust and unfair to punish a child based on the nature of their parent’s marriage, which was not in the child’s control. Due to the restrictions on inheritance rights, the 2023 judgement promotes inequality which is contrary to the spirit of this legislation and the notion of equality.
Defects in the 2011 judgement
When referring to the judgement of 2011, it contains a degree of contradiction that needs clarification. On one hand, the two-judge bench explicitly noted that “the prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.” It has also stated that “in case of joint family property such children will be entitled only to share in their parents property but they cannot claim their own right”. In the 2011 judgement, the Supreme Court opined that once the share of parents is decided, it will be treated as their absolute and self-acquired property, and there should be no children who do not have the right to it.
The Supreme Court in 2011 observed that Parliament gave legitimacy to illegitimate children but it was also limited under Section 16(3). Despite this, the Supreme Court held that illegitimate children are at par with legitimate children when it comes to property rights, which is not the case.
It is to be noted that the rationale of the Supreme Court in the 2011 judgement, where conferring legitimacy was seen as conferring all the property rights to illegitimate children, was not in consonance with Section 16(3). Section 16(3) mentions that the rights of a child are limited to the property of their parents and not any other person.
Current position
The Supreme Court in its 2023 judgement started by observing that when a Hindu dies after the 2005 amendment, their interest in JHF’s property will be inherited through a will or by intestate succession and not by the rule of survivorship. According to Section 6(3), the interest is determined as if the notional partition occurred immediately before their death. The share that would have been allotted to the deceased from this notional partition is disturbed in accordance with the General Rules of Succession given under Section 8 of the Hindu Succession Act, 1956.
Then the property is distributed among Class I heirs in accordance with the rules enshrined under Section 10. Each surviving son, daughter, and mother of the deceased gets one share. The widow/widows, if there exists more than one, will get one share collectively.
Now, a child given legislative legitimacy under Sub-sections 1 and 2 of Section 16 of the Hindu Marriage Act, 1955 is also entitled to a share in the deceased’s property. Since, Section 16(3) restricts the child from inheriting any property other than their parents, because this is a notional partition, it belongs to the deceased and hence makes it parents property and the bar under Section 16(3) won’t be applicable. This simply means that when a deceased dies intestate, the property is inherited equally by all children i.e. both legitimate and legislatively legitimate. The court opined that this process is not violative of provisions given under Section 16(3) of the Hindu Marriage Act, 1955.
To understand the interpretation of Section 6 which mandates the assumption of notional partition, the court simplified it with the help of an example which has been briefed below for a thorough perusal.
The example given by the court states that there are 4 coparceners, namely, C1, C2, C3, and C4. Let’s say C2 died and left behind him a widow, one son, one daughter and one illegitimate child borne out of a null and void marriage in accordance with Section 11 of the Hindu Marriage Act, 1955. Now, we will assume that the partition of the coparcenary property among the brothers happened immediately before the death of C2 and in this partition, C2 got 1/4th of the share from the said coparcenary property. Within C2’s branch, the widow and all his children would get 1/3rd share each. C2’s share would be divided in the following manner:
C2’s widow will receive 1/3rd share out of 1/4th share of C2;
Validly born child will get 1/3rd share from the 1/4th share of C2;
The child born out of the null and void marriage under Section 11 would also be entitled to 1/3rd share out of the 1/4th share of C2.
This would be the correct interpretation of Section 6 where notional partition happens right before the death of the coparcener and then the shares are distributed among the heirs of the deceased which also includes children born out of marriages covered under Section 16(1) and 16(2) who have been deemed legislatively legitimate.
Conclusion
In conclusion, the judgements in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011 & 2023) deals with the complexities of inheritance rights concerning the children born from void and voidable marriages. The Supreme Court analysed several legislations from the Hindu Marriage Act, 1955 to the Hindu Succession Act, 1956 and the Constitution of India and examined its intricate interconnection. It was concluded that the children born out of marriages deemed void and voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955 are categorised illegitimate, and therefore, their rights pertaining to property and inheritance are limited. Section 16(3) provides that illegitimate children are only entitled to parents’ self-acquired property, and they do not have any right in JHF’s coparcenary property. This was done keeping in mind a balance between the rights of children born from valid marriages and those from void/voidable marriages. It safeguards the property and inheritance rights of children from valid marriages and ensures that they are not interfered with.
Frequently Asked Questions (FAQs)
What is the difference between JHF and coparcenary?
JHF is a larger institution as it includes all-male lineal descendants from a common ancestor, along with their wives and daughters. On the other hand, coparcenary is a narrow institution and only includes 3 generations of male lineal descendants from a common ancestor along with the last holder of the property. This view was amended in 2005 and daughters were also given coparcenary rights. No member can join the coparcenary by way of marriage. However, JHF can be joined through marriage. For example, wives of brothers will be part of brothers JHF upon their marriages.
What is the Doctrine of Survivorship?
When a coparcenary property is devolved as per the rule of survivorship, if one joint owner passes away, their share in the property is devolved among the surviving coparceners which is in contrast to the concept of testamentary succession or rules of succession enshrined under the Hindu Succession Act, 1956 where the property is usually devolved to the heirs of the deceased. Under the Rule of Survivorship, the share of all the coparcenary members keeps fluctuating depending upon the births and deaths in the joint family. This doctrine resonates with the traditional idea of preservation and unified enjoyment of ancestral property. Although, it is to be noted that post-2005 the rule of survivorship is no longer applicable in India.
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This article is written by Prashant Gupta and updated by Syed Owais Khadri. This article provides a comprehensive study of the ruling rendered by the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993). It delves into the facts, arguments, judgement, and reasoning in detail. It also sheds light upon the point of law involved in the case. Additionally, the article also attempts to provide a detailed analysis of the judgement.
Table of Contents
Introduction
A lot of disagreements have been witnessed between the judiciary and the executive in recent times. While the judiciary is unhappy with the abeyance of the executive or its non-obedience in making judicial appointments of the names recommended by the judiciary, the executive has been stubborn to continue its actions. In fact, the executive has started criticising or attacking the collegium system very aggressively. The remarks made by the law minister addressing the collegium system as an alien concept to the Constitution have started a new debate in this regard. Similar statements were made by other members of the executive as well.
However, it is important to note that the collegium system has not been expressly mentioned in the Constitution but has evolved through the judicial precedents in various cases. The collegium system was first established after the case of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) and was later strengthened in the third judge’s case. This article discusses the case mentioned above which led to the establishment of the collegium system.
The instant case was a plea for reconsideration of some of the key issues relating to judicial appointments wherein the Hon’ble Supreme Court overturned the decision rendered by itself in S.P. Gupta vs. Union of India (1982). It also devised a specific procedure for the appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary” which is now known as the collegium system. For the same reason, the primacy of the Chief Justice of India was held to be essential. The case is based on the independence of the judiciary as part of the basic structure of the Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’ which is essential for the preservation of the democratic system and the separation of powers which is adopted in the Constitution with the directive principles of ‘Separation of judiciary from the executive’, the case was decided on 6th October 1993.
Details of the case
The following are some of the important details of the case discussed in this article-
Case No.: Writ Petition. 1303 of 1987 (along with Writ Petition. 156 of 1993)
Parties to the case:
Petitioner(s): Supreme Court Advocates on Record Association and Others.
Respondent(s): Union of India.
Equivalent Citations: AIR 1994 SC 268, (1993) 4 SCC 441
Court: Supreme Court of India
Bench: Justices. S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, and Dr. S.P. Bharucha.
Judgement Date: 6th October, 1993
Ratio of Judgement: 7 (5 Majority + 2 Concurring): 2 (Dissenting)
Background of the case
The matters relating to the appointment of the judiciary have plagued and perplexed the judicial mind ever since the inception of the Constitution. This matter has to be resolved by the interpretation of the constitutional provisions relating to the appointment of the judiciary. A delicate balance had to be struck between democratic control of an essentially undemocratic institution and impartial arbitration.
The matter came up for adjudication in Sankal Chand vs. Union of India (1976), where the court upheld the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the debate had reached epic proportions. These matters took solid form in a batch of writ petitions questioning the move to transfer the judges challenging the affected transfer of some judges and demanding the justifiability of judge strength.
This case involved a challenge to a circular issued by the Union Law Ministry prescribing the appointment of additional judges in various High Courts.
Multiple writ petitions were filed before different High Courts across the country challenging the Constitutional validity of circular prescribing appointments.
In the meantime, an order prescribing the transfer of certain judges was also issued. The Constitutional validity of the transfer orders was also challenged by filing writ petitions.
All these petitions were transferred to the Hon’ble Supreme Court under Article 139A of the Constitution.
Additionally, a writ petition under Article 32 was filed before the Hon’ble Supreme Court challenging the transfer order and another Special Leave Petition was also filed in the same regard.
Therefore, the Hon’ble Supreme Court decided to hear all the matters together by forming a Constitution Bench with the writ petition filed by Mr. S.P Gupta as the lead petition.
The case involved pertinent questions of Constitutional importance with the most important ones relating to the independence of the judiciary. Various other significant issues were framed and adjudicated in this case. However, two key issues to note from this case are namely,
The primacy of the opinion of the Chief Justice of India in matters relating to judicial appointments; and
The justiciability of fixation of judge-strength.
The Hon’ble Supreme Court in this case ruled that the Chief Justice of India did not enjoy a primacy of opinion over the other Constitutional functionaries mentioned in provisions relating to judicial appointments. The Court had also ruled that a mandamus cannot be issued to the government/executive to secure the fixation of judge-strength in High Courts. It held that the matter of judge-strength in High Courts was not a matter that could be decided through judicial review.
Subhash Sharma vs. Union of India (1990)
The decision rendered in S.P. Gupta vs. Union of India (1982) concerning the two issues mentioned above was followed by criticism and controversy and then ultimately by three writ petitions praying for a mandamus for filling up the vacancies across various High Courts. One of those petitions was filed by Mr. Subhash Sharma and one was filed by the Supreme Court Advocates on Record Association and there was also another petition in the same regard. All three petitions were clubbed under the lead petition by Subhash Sharma as Subhash Sharma vs. Union of India (1990).
The Court, in this case, disposed of the first and last petition after an assurance was given by the Attorney General regarding the timely filing of the remaining vacancies in the High Courts. However, the second petition was referred to a nine-judge bench for examination or reconsideration of the two key issues mentioned above. This reference ultimately led to the instant case before a nine-judge bench.
Facts of the case
The instant case was before the nine-judge bench of the Hon’ble Supreme Court for examination of issues of Constitutional importance relating to judicial appointments. It is important to revisit and note the facts, and background of the issues that brought the instant case before the nine-judge bench. The facts of the case are discussed below in detail.
The instant petition was filed in 1987 by the Supreme Court advocates on record association for filling up the vacancies of judges in the Supreme Court as well as various High Courts. Alongside, another PIL was filed by Subhash Sharma, an advocate of the Supreme Court praying for the same relief.
A three-judge bench noted the instant petition while it was dealing with the PIL filed by Mr. Subash Sharma in Subhash Sharma and Ors. v Union of India (1990). The three-judge bench passed an order directing the said case, along with the instant petition and other connected matters to be placed before the Chief Justice of India.
The reference to the Chief Justice was for the constitution of a nine-judge bench for the examination of issues involved in the immediate case mentioned above. The said cases involved issues of Constitutional importance relating to judicial appointments and hence it was referred to a larger bench.
The referring bench (three-judge bench) made the order since it was of the view that the correctness of the decision rendered by the majority view in S.P. Gupta vs. Union of India (1982) required reconsideration by a larger bench. The main questions of law or the issues that required reconsideration as per the order of the three-judge bench have been mentioned below.
However, at this juncture, the Constitution (67th Amendment) Bill, 1990 was introduced in the parliament seeking to amend articles 124(2), 217(1), 222(1) and 231 (2) (a). This bill was brought to empower the president to set up a judicial commission known as the National Judicial Commission. The avowed objective was to implement the 121st Law Commission Report. This report recommended that a judicial commission be set up to oversee the appointment of the judiciary. However, nothing came of this as the bill lapsed with the dissolution of the 9th Lok Sabha. The writ petitions seeking a review of the S.P Gupta case were heard by a three-judge bench, namely Chief Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi, which recommended reconsideration.
Issues raised
Although the case involved various questions relating to the independence of the judiciary, separation of powers, functions of the president under various Constitutional provisions, interpretation of various terms such as aid and advice, recommendation and consultation from various Constitutional functionaries, formulated two issues were formulated as the primary issues by the judges delivering majority ruling. The main issues that were formulated for adjudication are as follows.
Whether the opinion given by the Hon’ble Chief Justice of India concerning the appointment or transfer of judges of the Supreme Court and High Courts hold primacy over the opinion of other functionaries or not?
Whether such matters including the matter of the fixation of the judge-strength in the High Courts are justiciable?
The point of law involved
It is vital to understand the relevant legal provisions concerning the issues in any case for the appropriate analysis of such issues. The relevant legal provisions discussed or examined in the instant case are discussed below.
Constitution of India
The instant case revolves around the issue of the appointment of judges and the involvement of the executive or the parliament in the judicial processes or affairs etc. The relevant provisions of the Constitution of India noted in the instant case are as follows.
Article 12 of the Constitution
Article 12 of the Constitution is an important provision concerning fundamental rights as it lays down the definition of the “State” wherein it defines the term “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
This provision is vital as it lays down the authorities against whom fundamental rights under Part III of the Constitution can be enforced or the authorities on whom the duty to promote and protect the fundamental rights is imposed.
The definition of “State” under this provision is also applicable to Directive Principles of the State Policy under Part IV of the Constitution as per Article 36 of the Constitution
The Hon’ble Court in the instant case noted the provision under Article 36 and observed that the definition applies to the entire Part IV and hence “the State” in Article 50 has to be interpreted in a distributive sense to include all the authorities mentioned in its definition such as the government, local and all other authorities under the control of Indian Government. Accordingly, it further observed that the examination of the concept of separation of the judiciary from the executive cannot be limited to the subordinate judiciary while disregarding the higher judiciary.
Article 13 and Article 368 of the Constitution
It is vital to discuss both provisions together since they are closely interconnected and are of great significance from the perspective of Constitutional law.
Article 13 of the Constitution
Article 13 of the Constitution invalidates any ‘law’ that is in contravention of Part III of the Constitution. It also prohibits the State from making ‘laws’ that violate or take away fundamental rights and if made, such laws would be invalid under this provision.
However, Clause (4) of this Article lays down an exception to invalidity. Article 13(4) provides that the rule of the invalidity of laws if they’re in contravention of Part III of the Constitution would not apply to the amendments made to the Constitution under Article 368 of the Constitution.
Moreover, it is interesting to note that Article 13(3)(a), which defines the term “law” does not include an amendment within its definition, but it is also important to note that the definition provided under the said sub-clause is an inclusive definition and not an exhaustive one.
Article 368 of the Constitution
Article 368 empowers the Parliament to make amendments to the Constitution by adding, repealing, or changing any of the provisions in the Constitution. Article 368(3) is similar to the provision under Article 13(4). It exempts the application of the rule under Article 13 to amendments under Article 368.
This uncertainty and lack of clarity concerning the scope of the power possessed by the parliament to make amendments under Article 368 of the Constitution led to a crucial debate regarding the said Constitutional issue.
The Basic Structure Doctrine simply states that the Parliament has the power to make amendments to the entire Constitution including the fundamental rights under Part III of the Constitution, but such amendments should not be in contradiction or violation of the basic principles of the Constitution such as Equality, Justice etc. It does not provide an exhaustive list of the principles that are to be considered fundamental to the Constitution but provides a subjective idea of what can be included under the doctrine. It basically refers to the spirit of the Constitution.
Article 32 and Article 226 of the Constitution
These provisions are of great significance as they provide a mechanism or remedy for the enforcement or protection of the rights of individuals. While the former provides such a mechanism before the Hon’ble Apex Court, the latter does it before the High Courts at the state level.
Article 32 of the Constitution
Article 32 of the Constitution guarantees the right to Constitutional remedies. It guarantees the right to directly approach the Hon’ble Supreme Court for the enforcement of other fundamental rights or in case of violation of any of the fundamental rights guaranteed under Part III of the Constitution by filing a writ petition.
Article 226 of the Constitution
Article 226 confers the High Courts with powers, similar to those provided under Article 32 of the Constitution. It provides a remedy for individuals to approach the High Court by filing a writ petition for enforcement of his/her rights. Any person aggrieved by the violation of the fundamental rights enshrined under Part III of the Constitution can approach the Hon’ble High Courts for the enforcement of their rights under this provision.
However, it is important to note that the scope of this provision is wider than that of Article 32 of the Constitution. Article 226, unlike Article 32 doesn’t limit its scope to enforcement of fundamental rights but extends beyond it. Clause 1 of this provision ends with the phrase “….for the enforcement of any of the rights conferred by Part III and for any other purpose.” The words ‘any other purpose’ are not incorporated under Article 32, which makes the scope of this provision wider than Article 32. Therefore, any person can approach the High Courts for enforcement of rights other than fundamental rights as well, which is not possible under Article 32. Moreover, Article 226 doesn’t restrict itself against the ‘State’. It is clarified in Clause 1 that the High Court, under this provision possesses the power to issue writs against any person or authority which also makes the scope of the provision wider.
Article 50 of the Constitution
Article 50, falls under Part IV of the Constitution which includes the Directive Principles of State Policy. The provision mentions the concept of the separation of powers. The provision imposes a duty on the State to implement the concept by ensuring the judiciary is separated from the executive. It calls for the State to take measures to separate the judiciary from the executive in the public services of the State.
Provisions relating to the establishment, constitution, and appointments of the judiciary
The establishment and composition of the Supreme Court and High Courts and the appointment of judges in these Courts have been laid down under various Constitutional provisions.
Article 124 provides for the establishment and composition of the Supreme Court. It contains provisions relating to the appointment, qualifications, and removal of judges of the Supreme Court.
Clause 2 of this provision prescribes the appointment of the Supreme Court judges by the President.
Clause 3 prescribes the qualifications for a person to be appointed as the judge of a Supreme Court.
Clause 4 prescribes the procedure for the removal of a judge of the Supreme Court. It provides that the removal is to be done by the President after an address and voting for such removal in the Parliament.
Articles 126 and 127 respectively prescribe for the appointment of Chief Justice and Ad hoc judges in the Supreme Court by the President. Likewise, Articles 223 and 224 respectively prescribe for the appointment of Chief justices and additional acting judges for High Courts by the President
Article 214 prescribes a High Court in each State and Article 216 prescribes the composition of High Courts.
Article 217 provides for the appointment of judges of the High Courts by the President. It also contains provisions relating to their qualifications and it also provides that the removal procedure would be the same as that mentioned in Article 121(4).
Article 222 confers the power of the President to transfer the judges from one High Court to another.
Note: The current provisions state the appointments and transfers are to be done on the recommendation of the National Judicial Appointments Commission, but such provisions, while this case was being contested before the Supreme Court, provided for such appointments and transfers to be done with the consultation of the Chief Justice of India, judges of the Supreme Court and judges of the High Courts in the States if deemed necessary. The requirement of recommendation of the National Judicial Appointments Commission was inserted by the 99th Constitutional Amendment Act, but it was later struck down by the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015).
Article 233 prescribes the posting and promotion of the district judges to be made by the Governor of the State in consultation with the High Court of such state. It also provides the qualifications of a person to be appointed as a district judiciary. It provides that the appointment shall be made based on the recommendation made by the High Court.
All the provisions mentioned above reflect the role of the President in judicial affairs deviating from the concept of separation of powers.
Other Constitutional Provisions
Article 74 prescribes the duty of the Council of Ministers (headed by the Prime Minister) to aid and advise the President who is obligated to act in conformation with such advice. Similarly, Article 163 prescribes the duty of the Council of Ministers (headed by the Chief Minister) at the State level to aid and advise the Governor.
Article 112 contains provisions relating to the annual financial statements of the consolidated fund of India and Article 113 provides for the procedure in the Parliament, relating to estimates of such funds mentioned in the previous provision. Likewise, Article 202 contains provisions relating to the annual financial statements of the consolidated fund of each State, and Article 203 provides for the procedure in the State Legislatures, relating to estimates of such funds mentioned in the previous provision
Article 112(3)(d) and Article 202(3)(d) prescribe the payment of remunerations, salaries, allowance, pensions, etc., to the judges of the Supreme Court, High Courts, and other Courts from the consolidated fund of India.
Article 121 prohibits discussion on the conduct of any judges of the Supreme Court or High Courts in the Parliament. However, an exception to the said restriction is a motion addressed to the President for removal of the judge. Similarly, Article 211 prohibits any discussion on the conduct of the judges of the Supreme Court and the High Court in any of the State Legislatures.
Articles 125 and 221 prescribe the provisions relating to the salaries of the Supreme Court and High Court judges respectively.
Articles 129 and 215 declare the Supreme Court and the High Courts as the Courts of record.
Articles 136, 137, and 145 lay down the various powers of the Supreme Court such as the power to grant special leave, the power to review the judgements, and the power to frame rules of the Court, etc.
Article 141 makes the law made or declared by the Supreme Court binding on all other Courts.
Arguments of the parties
Numerous arguments were put forth by different counsels. The main subjects of the contentions involved were concerning the scope and extent of advisory powers under Articles 74, 124, and 217 of the Constitution, independence of judiciary and separation of powers, meaning of the term consultation mentioned in various provisions relating to the appointment of judges, the primacy of the advice amongst different functionaries and the fixation and justiciability of the judges’ strength in Courts. The contentions put forth by both petitioners as well as the respondents are briefly discussed as follows.
Petitioners
Several eminent counsels argued as the petitioners in the instant case but the leading arguments were presented by the Petitioner-in-person Mr. S.P. Gupta, and Mr. Fali. S. Nariman, and Mr. Kapil Sibal. They argued that the core issue in furtherance of which the contentions are being made is the independence of the judiciary. Additionally, Mr. Ram Jethmalani stated six reasons for the reconsideration of the decision rendered in S.P. Gupta vs. Union of India (1982) which are as follows.
Lack of attention towards provision enumerated under Article 50 of the Constitution.
Principles of interpretation applied for the interpretation of the Constitution were those that were valid for statutes.
The incorrect assumption that the President under Articles 124 and 217 is the same as that under Article 74.
Wrongful denial of primacy to the Chief Justice of India on the ground that the judiciary is not accountable to the public since it is a non-elected office.
Reliance upon inadmissible material in the form of speeches of the members of the Constituent assembly.
The decision was rendered with a lack of care. (per incuriam)
The important arguments advanced by the petitioners were under the following heads.
Effect of the basic features of the Constitution on provisions relating to judicial appointments
The counsel for the petitioner contended that the basic features of the Constitution including those under Articles 124(2) and 217(1) limit the scope of Article 74 in matters relating to judicial appointments and judicial independence.
The petitioners pointed out the following as the basic features of the Constitution
The provisions under Articles 124(2) and 217(1) promote an effective, independent, and affirmative participation of the judicial authorities or functionaries.
The total separation of the judiciary from the influence of the executive and other branches of the government.
Other significant features such as the rule of law, judicial review, and the independence or separation of the judiciary as enumerated under Article 50 of the Constitution.
They also contended that the independence of the judiciary doesn’t come into play only after the appointment but it also implies the process of judicial appointments.
They further pointed out a statement made by Dr. B.R. Ambedkar concerning the process of judicial appointments wherein he had stated that the “judiciary must be free from the influence of executive and be competent in itself”.
Furthermore, the counsel contended that the consultation with the Governor as mentioned in Article 271(1) is not a basic feature of the Constitution.
They ultimately contended that the basic provisions of the Constitution restrict the scope of provisions to conform with the principal Constitutional structure. Moreover, if there is a conflict between two Constitutional provisions, the interpretation of those provisions has to be preferred which conforms with the basic principles or structure of the Constitution.
Intricacies of provisions under Article 74(1), 124(2) and 217(1)
The petitioners contended that Article 74(1) prescribes two functions of the Council of Ministers one of which is not applicable in the process of judicial appointments since it is handed over to the judicial functionaries under Articles 124(2) and 217(1). The two functions of the Council of Ministers are as follows.
Advisory function i.e., to advice the President; and
Informative function, i.e., to aid the President.
Accordingly, in matters relating to judicial appointments, the recommendation or consultation mentioned under Articles 124(2) and 217(1) is limited only to be rendered by the judicial functionaries. Besides, such recommendation or consultation restricts the scope of the advice given by the Council of Ministers to the President under Article 74(1).
In simple words, the interplay between these three provisions is that, in matters relating to judicial appointments, the “advice” mentioned under Article 74(1) is substituted with the “recommendation/consultation with the judicial functionaries” under Articles 124(2) and 217(1). Therefore, in the process of judicial appointments, the only duty or function of the Council of Ministers under Article 74 is limited to only “aid” the President as the advisory function is carried out by the judicial functionaries as mentioned above.
They contended that such exclusion or restriction of the advisory function of the Council of Ministers was to ensure the independence of the judiciary from the executive influence.
They further contended that the provision under Article 124 must be interpreted in a purposive manner. This is because the requirement of consultation with the judges during the appointment process was intentional in appearance. They argued that consultation with judges other than the Chief Justice is mandatory as per Article 124(2).
Meaning and issue of consultation
The counsel for petitioners contended that the deliberate requirement of consultation with Constitutional authorities i.e., the judicial functionaries was one of the Constitutional foundations for the principle of judicial independence.
They contended that the term “Consultation” includes and implies advice as well. They further argued that such advice rendered by the person who is supposed or obligated to be consulted is binding upon the appointing authority.
They contended that the main objective of the aforesaid requirement was to facilitate the identification of the most appropriate persons to be appointed as judges and not the persons who are merely qualified for such appointments. Such an identification can be done by someone who is expected to know the person qualified for appointments better than the appointing authority, who, in this case, are the judicial functionaries themselves.
They contended that the obligation to consult is integrated with the power of appointment in a manner where such power could be exercised only with the performance of the duty of consultation with the persons specified under the provisions. They pointed out that this kind of integration is reflected in the provisions prescribing consultation.
Additionally, they contended that the provisions under Article 124(2) and 217(1) only lay down the Constitutional authorities who are to be consulted during the process of appointments. However, these provisions do not prescribe a method or procedure for consultation or subsequent recommendation of appropriate candidates to be made. Hence, they argued that since the procedure has not been expressly prescribed, such recommendations must be carried out in accordance with the principle of judicial independence and must be free from the influence of the executive.
Ultimately, they contended that the authority to recommend appropriate persons for appointments should rest only with the judicial functionaries. They argued all other Constitutional authorities should be consulted in a manner that will facilitate the following.
Promotion of judicial independence.
Expedient filling up of vacancies.
Ensuring the persons ultimately appointed are only those recommended by the judicial functionaries.
Question/Issue of primacy
The counsel for petitioners contended that none of the provisions relating to judicial appointments, particularly Articles 124(2) and 271(1) indicate any kind of primacy held by the Constitutional authorities mentioned in those provisions. They contended that such primacy has to be decided in accordance with the principle of independence of the judiciary from the influence of the executive.
They primarily contended that the answer to the question of primacy must be understood as the primacy of judicial functionaries over the Council of Ministers. Such primacy is a fundamental feature of the Constitution and not the primacy of the Chief Justice of India
They argued that, since the role of the Council of Ministers in the provisions is merely to aid, the only authority to be consulted is the judicial functionaries. Hence no question of primacy arises. They further argued that even if the Council of Ministers are considered to have an advisory role, such advice rendered by them must be in conformity with the advice of the judicial functionaries or should reflect the advice of the judicial functionaries.
Furthermore, it was asserted that, within the judicial functionaries, the Chief Justice must be regarded as the ultimate spokesperson of the advice rendered by them since he is head of the Indian judicial functionaries.
Justiciability of fixation of judge-strength
The petitioners contended that Article 216 does not allow subjective discretion to the President concerning the decision over the judges’ strength in the High Courts. It imposes an obligation upon the President to decide the strength of the judges in the High Courts to deal with the pending litigation. The President is obligated to make such a decision considering the objective criteria from time to time.
They contended that the terms “may from time to time deem it necessary to appoint” under Article 16 reflects an obligation imposed on the President to constantly review or reconsider the strength of the judges in the High Courts.
They also contended that the right to a speedy trial and justice under Article 21 of the Constitution must also be taken into consideration while interpreting the provision under Article 216. Such an interpretation imposes a fundamental duty on the State to constantly review and reconsider the judges’ strength in the High Courts to ensure speedy trial and justice.
The petitioners contested the decision rendered by the Hon’ble Supreme Court in the case of S.P. Gupta vs. Union of India (1982) concerning the issue of justiciability of the judges’ strength wherein the issue was held as non-justiciable.
Respondent
The main arguments were presented by the Attorney General of India, who suggested a middle course by proposing for acceptance of the views of Hon’ble Justice Pathak in S.P. Gupta vs. Union of India (1982). Mr. K. Prasaran who was arguing on behalf of the Union of India argued for the affirmation of the majority opinion rendered in S.P. Gupta vs. Union of India (1982). The vital arguments advanced by them were as follows.
Independence of the judiciary
The respondents contended that the post-retirement safeguards should be taken into consideration while evaluating or discussing the independence of the judiciary. They pointed out that the High Courts control the subordinate judiciary. Besides, the higher judiciary is protected by stringent provisions concerning the service conditions and processes relating to the higher judiciary.
They contended that the appointment of judges is an executive function and executive power is held by the President and the Governor. As a result, the power to appoint judges is also held by them. However, such power is regulated by certain provisions mandating consultations with Constitutional authorities.
They asserted that even in countries like the U.S. and Australia judges have no role in the process of appointment, but it cannot be said that the judiciary in those States is not independent.
They contended that the Constitution also provides for the independence of the Comptroller and Auditor General of India. Even so, the process of his appointment is similar to that of the appointment of judges. The Comptroller and Auditor General of India is appointed by the President on the advice of the Council of Ministers. Accordingly, they argued that it is not necessary that the appointment must be based solely on the approval of the Chief Justice of India.
The respondents argued that the mere existence of appointment power in a separate branch of the government or a different Constitutional authority does not imply that judicial independence has been hampered.
They also asserted that the Indian judicial system is based on the English judicial system, where the judicial appointments are made by the executive. They argued that it’s unreasonable to replace or change the system which has worked so well till now.
Meaning and issue of consultation
The respondents contended that the meaning of the term “consultation” is not the same as that of “recommendation”, “concurrence” or “aid and advice”.
They pointed out that the two different terms recommendation and consultation have been used simultaneously in the same provision under Article 233. They asserted that the use of distinct terms in the same provision made it clear that the choice of distinct terms was deliberate.
They argued that the term “consultation” under Articles 124(2) and 217(1) provides an effective meaning and conveys the exchange of views between various Constitutional functionaries.
The respondents asserted that the Constitutional provisions cannot be interpreted in a manner that would contravene the language of the expressions used. Additionally, it can also not be interpreted in a way that would give any contradictory meaning to the words used.
Question/Issue of primacy
The respondents contended that the question of the primacy of either of the Constitutional authorities is inconsistent with the concept of consultation. However, they also agreed that the views of the Chief Justice of India must have greater leverage considering the special position occupied by him and the advantage of views he might have when compared to other functionaries.
The respondents contended that the inclusion of the concept of the primacy of the Chief Justice of India would mean the addition of a proviso to the provisions under Article 217. This would ultimately have an implication of rewriting the provision.
They argued that the provision must not be interpreted in a hierarchical manner since the power of the two Chief Justices to give their opinion to the President under Article 217 is functional and irrelevant to hierarchy. They contended that the significance must be given to functional efficacy and not to the question of primacy.
The respondents contended that the executive as well as the legislature derive their power from the people and are accountable to them. Similarly, the judiciary must as well work in the same manner, either directly or indirectly. Thus, the judicial appointments are made by the executive as it is accountable to the people through the Parliament.
Justiciability of fixation of judges’ strength
The respondents contended that the question over the issue of judge strength was not sustained as it had already been disposed of in the decision of Subhash Sharma and Ors. vs. Union of India (1990).
They contended that the increase in the strength of the judges has financial implications as well and hence it has to be left to concerned authorities to decide accordingly.
The respondents contrasted the provision under Article 216 with Article 124 and pointed out that the Parliament prescribes the strength of the Supreme Court under the latter provision. Accordingly, they argued that the power to decide the strength of the judges has to be left to the Parliament and not to the executive or the judiciary. If any situation arises where it is felt that the strength of the Supreme Court has to be increased, it has to be done by the Union legislature by way of legislation.
They further argued that the Court cannot issue a mandamus to the Parliament to legislate. They asserted that the Court is not empowered to prescribe the strength of the judges in a Court by way of judicial review. Thus, they contended that the matter is not subject to justiciability.
Furthermore, they contended that the fixation of judge-strength has been intentionally left to the President. They asserted that the President is the head of the executive which is technically under the control of the Parliament or legislature which will ensure constant review or fixation of judge-strength.
Judgement in Supreme Court Advocates on Record Association vs. Union of India (1993)
The decision in the instant case was delivered with a ratio of 7:2 wherein the majority opinion overruled the ruling in S.P. Gupta vs. Union of India (1982) and answered the issues in question in the affirmative while the other two judges dissented on one of the issues.
The Court, on the question of primacy, concluded that the role of the Chief Justice of India in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor the executive can push through an appointment in derogation of the wishes of the other.
The minority judgement given by Justices Ahmadi and Punchhi held that the executive had primacy over the opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi did not express a view, Justice Ahmadi concurred with Justice Venkataramaiah, in SP Gupta’s case allowing a limited mandamus to the issue.
The decision rendered by the majority as well as the dissenting judges is discussed as follows.
The majority ruling discussed below is as per the opinion rendered by Justice J.S. Verma and his four colleagues and not the other two which are separate concurring opinions. Nevertheless, it also discusses observations or rulings rendered by the two concurring judges on any additional aspects other than those already discussed in the majority opinion.
Similarly, the dissenting opinion discussed below is as per the ruling rendered by Justice A.M. Ahmadi since Justice M.M. Punchhi arrived at the same conclusion as Justice Ahmadi but with a different reasoning. Justice Punchhi also observed that he is in agreement with his colleague except for the rationale explained by him.
Majority
In the instant case, a majority of 7 judges of a nine-judge bench of the Hon’ble Supreme Court answered the issues in question in the affirmative. A majority opinion of five judges along with two concurring opinions held that the Chief Justice of India has a primacy of opinion in matters relating to judicial appointments and transfers. However, it held that his primacy was as the head of an institutional body and not as an individual. The court also held that the matter of fixation on the judge’s strength in High Courts is justiciable to a certain extent.
The Court by a majority view ruled that the ruling rendered by the majority opinion in S.P. Gupta vs. Union of India (1982) with regard to the issues mentioned above is incorrect. Accordingly, it ruled that the relevant provisions of the Constitution along with the Constitutional scheme must be interpreted and implemented as per the manner prescribed in this judgement.
Meaning of consultation
The majority ruled that the meaning or understanding of the term ‘consultation’, when it concerns the Chief Justice of India as the head of the Indian judiciary for the purpose of judicial appointments, has to be different from that of its understanding and meaning when it concerns the executive for assistance in the said purpose or process. They observed that the usage of the word ‘consultation’ instead of ‘concurrence’ was to indicate that no excessive discretionary power was given to any of the Constitutional functionaries, including the Chief Justice, even though his opinion held greater value. It was a kind of check that was exercised through a consultative process by the executive, which is the appointing authority over the power of the Chief Justice.
Primacy of opinion
The Court ruled that the opinion of the Chief Justice of India holds primacy in matters relating to all judicial appointments under Articles 124(2) and 217(1) and no decision must be taken or no appointment must be made by the President in contravention of his opinion.
The majority held that Articles 74(1), 124(2), and 217(1) have to be interpreted harmoniously to ensure that the Constitutional aim set out in the latter two provisions is served. They ruled that the President must act in accordance with the advice of the Council of Ministers which, in turn, must conform with the requirements of Articles 124(2) and 217(1) i.e., the consultation with the Chief Justice of India.
They ruled that primacy must be given to the ultimate opinion of the Chief Justice of India. However, it might be ignored in the presence of strong reasons for the non-suitability of the candidate with the executive and such reasons must be disclosed to the Chief Justice. They further clarified that the primacy of the opinion of the Chief Justice of India is of him as an institutional head and not an individual. It is a collective opinion, formed after consideration of the views of his senior colleagues. They observed that the opinion of the Chief Justice in the consultation process must reflect the opinion of the judiciary.
They ruled that the opinion of the Chief Justice of India must be formed after consideration of the views of two senior-most judges of the Supreme Court. They held that consideration or ascertainment of the views of some other judges has been stipulated as essential under Article 124(2). Similarly, with regard to the appointments in High Courts, they ruled that the Chief Justice of the High Court must form his opinion after consideration or ascertainment of the views of the two senior-most Judges of the High Court.
Besides, the Court ruled that the initiation of the process of transfer of a judge must only be done by the Chief Justice of India. It held that a transfer made in accordance with the recommendation of the Chief Justice of India is not justiciable.
It further ruled that the rule of seniority must be followed in the appointment process, except in the existence of compelling reasons to the contrary.
Justiciability of fixation of judge-strength
The Court noted that Article 216 imposes an obligation on the President to conduct a frequent assessment of the judge strength of the High Courts by taking the pending and the cases expected to be filed in the future into consideration. It held that the failure to perform the duty prescribed under Article 216 must be justiciable to ensure the performance of such an obligation. It ruled that the view taken by the majority in the decision of S.P. Gupta vs. Union of India (1982) concerning the comprehension of the Constitutional obligation prescribed under Article 216 in this regard was incorrect.
However, it clarified that the extent of justiciability of the matter does not extend beyond a mere direction to perform the duty mentioned under the provision in conformity with the recommendation of the Chief Justice of India. It ruled that the justiciability of the matter does not imply enabling the Court to assess and fix the judge strength of the High Courts by itself.
Moreover, Justice Kuldip Singh, who penned a concurring opinion laid down an instance when the duty of fixation of judge-strength has to be mandatorily by the executive. He ruled if the Chief Justice of any High Court recommends the fixation of judge-strength of such High Court and if the Chief Justice of India concurs with such recommendation, it is binding on the executive to perform its obligation under Article 216 to fix the judge-strength as recommended.
Dissent
The majority decision was dissented by two judges namely Justice A.M. Ahmadi and Justice M.M. Punchhi. Both the judges dissented on the issue of primacy of the opinion of the Chief Justice of India. But, both of them agreed with the majority on the issue of fixation of judge strength that it must be justiciable. They however clarified that the justiciability must only be to a limited extent and in the rarest of the rare cases.
Meaning of consultation
Justice A.M. Ahmadi in his dissenting opinion held that the plain language of the term ‘consult’ refers to seeking advice or views and it does not imply concurrence or consent. He ruled that the meaning of the term does not imply that the person seeking advice or views is bound to follow it.
Primacy of opinion
Justice A.M. Ahmadi in his dissenting opinion ruled that it is hard to consider the views of the Chief Justice of India as the collective or symbolised views of the entire judiciary and hence the President is bound to act in conformation with such views.
He ruled that holding the advice rendered by the Chief Justice of India in the process of consultation as binding on the executive is inappropriate. Mandating the executive to act in accordance with such advice would mean giving a right to veto to the Chief Justice of India. He observed that such a position does not conform with the Constitutional scheme.
He held that it is problematic to rule that the President is bound by the views of the Chief Justice of India as it would result in changing or rewriting the Constitutional provisions and their intentions. As a result, he ruled that the argument and reasoning put forth by the petitioners were not acceptable at this juncture as per the Constitutional provisions. Therefore, he ruled that he did not think the decision rendered in S.P. Gupta vs. Union of India (1982) required reconsideration of the primacy of the opinion of the Chief Justice of India.
Justice Punchhi ruled that the Chief Justice of India has a participatory role with the executive in matters concerning appointments to the Supreme Court. He held that neither of them could go ahead with the appointments against the views of the other.
Justiciability of fixation of judge-strength
As mentioned above, Justice A.M. Ahmadi and Justice M.M. Punchhi ruled in agreement with the majority on the issue of justiciability of fixation of judge strength. Justice Ahmadi ruled that the fixation of judge strength is justiciable to a certain extent and Justice Punchhi observed that he was in full agreement with his colleague.
Justice Ahmadi ruled that the issue of fixation of judge strength by the President under Article 216 is justiciable to a limited extent and should only be done in the rarest of rare cases. He ruled that if the executive is obligated to periodically review the judge strength in High Courts and if it fails to perform such obligation, a mandamus can be issued by the Courts to compel the executive to perform such obligation within a reasonable time.
Ratio Decidendi
Although the decision was rendered with a ratio of 7:2, the reasoning given by the Hon’ble judges for delivering their respective opinions was different. The pertinent reasons set out by the bench are discussed in detail below.
Majority
The ratio discussed below is as per the rationale laid down by the majority opinion of five Judges comprising Justice J.S. Verma and his four colleagues.
Justices. J.S. Verma and four others
Primacy of opinion
The majority view in the instant case (hereinafter referred to as “the Court”) observed that the question of the primacy of the opinion of the Chief Justice of India has to be decided in the context of the purpose or the Constitutional scheme behind it. It noted that the purpose herein mentioned is to select the best candidates for appointment in the Supreme Court and High Courts to ensure the independence of the judiciary. Hence It observed that any interpretation of the Constitutional provisions which is contrary to the aforementioned purpose must be repugnant.
The Court noted the assertion made by the Government of India wherein they stated that the judicial appointments have been made only after the clearance of names by the Chief Justice of India. It observed that this assertion by the government indicated the primacy of opinion given to the Chief Justice by the executive.
The Court noted that the primacy of opinion takes an important position only when there is a disagreement to reach a unanimous conclusion. Hence, primacy should be held by a person who is more likely to be right in his opinion while discharging his duty to achieve the aimed purpose satisfactorily. In simple words, someone who may be considered an expert in the aforementioned regard.
The Court noted that appointments for the superior judiciary are made of persons who are either the judges of the lower courts or the members of the bar. In both instances, the main space for such persons to exercise their duties is the courts. Thus, the appropriate person to assess their credibility and worth is the Chief Justice of the Supreme Court and the High Courts who would possibly know even the personal traits of the candidates as he is likely to get such information from various sources. It pointed out that the introduction of the consultation process with the Chief Justices of their respective courts was with this realisation that the Chief Justice would be best equipped to know the worth and credibility of the candidate who is likely to be appointed for the superior judiciary. It also noted the aim behind such an introduction was to prevent political influence on the judicial appointments.
The Court held that the actual accountability in matters concerning judicial appointments is of the Chief Justice of India and the Chief Justices of High Courts since they were responsible for the functioning of the Courts and would have to face consequences and criticism if any unsuitable appointment was made.
The Court noted the observation made by Justice Bhagwati in S.P. Gupta vs. Union of India (1982) while discussing the independence of the judiciary wherein he had noted the rule of law as the core principle of judicial independence which must be taken into consideration while interpreting relevant provisions. Accordingly, they observed that the rule of law includes non-arbitrariness which is achieved by minimal discretion and collective decision-making with the consideration of a plurality of views. They further observed that the consideration of legitimate expectations while making decisions is also an essential of the rule of non-arbitrariness and hence must also be followed by the Chief Justice of India while exercising his power in the judicial appointments process.
However, the Court also clarified that the President can refuse to make an appointment as per the recommendation of the Chief Justice of India in exceptional cases where there are compelling reasons to justify the act of the President. It noted that there might be, at times, certain functionaries other than the Chief Justice, who would be in a better position to know the information such as personal antecedents, etc., of the recommended candidate. It further observed that such material or information must be disclosed to the Chief Justice.
Justiciability of fixation of judge-strength
The majority view in the instant case noted that the imposition of an obligation under Article 216 was to ensure speedy trial and justice which is also a directive principle crucial in the governance of the nation. It observed that it is the duty of the State to ensure compliance with such a principle and to ensure the protection of fundamental rights under Part III of the Constitution.
The Court observed that if the existing strength of the Court is felt to be insufficient to provide speedy justice and speedy trial to the people, which is a facet of fundamental right under Article 21, a direction can be issued for the assessment of the insufficiency and to fix the strength accordingly. It observed that such assessment and fixation would help in securing a legal system that promotes justice, which has also been mentioned in the Preamble of the Constitution.
The Court observed that the provision under Article 216 must not be interpreted in isolation. Instead, it must be construed as a part of the ultimate Constitutional scheme. It noted such an interpretation of the provision would make the obligation or the duty prescribed in it justiciable to a certain extent.
Dissent
The rationale for the dissenting opinion discussed below is as per the views rendered by Justice A.M. Ahmadi. Justice M.M. Punchi observed that he was in agreement with the opinion of his dissenting colleague.
Justice A.M. Ahmadi
Primacy of opinion
Hon’ble Justice Ahmadi held the argument of the petitioners wherein they argued “that the Central Government in actual practice has always given primacy to the concurrence of the Chief Justice of India and the appointments made contrary to his opinion are very few, hence, the decision in S.P. Gupta vs. Union of India (1982) must be reconsidered” as unsustainable. He observed that both the executive and the judiciary work together to arrive at a consensus in matters relating to appointments and not against each other. Hence, making appointments in conformity with the opinion of the Chief Justice after arriving at a consensus is possible and it must not be the justification for reconsideration of the decision.
He noted that the consultation with the three Constitutional functionaries mentioned under Article 217(1) is an essential requirement in the appointment process. However, he observed the ultimate power of appointment rests with the President who must act in accordance with the aid and advice of the Council of Ministers under Article 74.
He pointed out three main aspects of the primacy of the Chief Justice of India as follows.
Primacy of the Chief Justice as the head of the Indian Judiciary.
Primacy to his views amongst all the consultees under Articles 124(2) and 217(1).
Primacy of his opinion or views which are binding on the President i.e., the executive.
Justice Ahmadi, with regard to the first aspect, noted the unique position of the Chief Justice of India, the authority and powers vested in that position, and the responsibilities performed by him. Accordingly, he observed that the Chief Justice of India holds primacy to that limited extent.
Justice Ahmadi, while examining the second aspect observed that the provision under Article 124(2) and particularly under Article 217(1) does not prescribe any kind of hierarchy between the consultees (Constitutional functionaries) mentioned therein. Hence, none of the opinions rendered by different functionaries can be ignored. He observed that it is unfair to consider the opinions rendered by other consultees as unwanted if they are in contravention with the opinions of the Chief Justice of India. He observed that awarding greater weight to the advice is different from treating it as the ultimate one. While the former one is fair and possible, the latter one is unfair to the other consultees.
He noted that the President is obligated to act in accordance with the aid and advice of the Council of Ministers under Article 74. Thus, binding the views of the Chief Justice on him would imply that the Council of Ministers including the Prime Minister is bound by such views. He hence observed that such an interpretation would mean rewriting the Constitution and changing the roles, positions, and structures laid down by the Constitution. Therefore, he observed that it is not possible to accept the contended reasoning unless the Constitution is amended.
Ultimately, with regard to the third aspect, he observed that the plain meaning of the term ‘consult’ means to seek advice and opinion but it does not imply that the person or authority seeking consultation is bound to abide by such advice or opinion.
Although he noted that it may be appropriate to construe any provisions broadly or to mould them according to the changes in society, it is impermissible to rewrite or replace the provisions in the guise of broad interpretation. Accordingly, he observed that it is not possible to indicate that the term ‘consult’ means concurrence or consent.
He noted provisions under Articles 320(3) and 323 of the Constitution which provide for consultation of the public service commission. The provisions also provide the procedure to be followed by the government if it chooses to not accept the advice of the commission. Hence, Justice Ahmadi observed that the Constitution itself lays down the possibility of non-acceptance of the advice rendered by the consultee. He also noted the decision of the Hon’ble Supreme Court in the State of U.P. vs. Manbodhan Lal Srivatsava (1957) wherein the Court observed that “the requisite of consultation does not extend to make the advice rendered by the commission binding on the government.” Accordingly, He observed that consideration of the advice rendered by the Chief Justice of India binding on the executive would lead to empowering the Chief Justice with a veto which does not look appropriate from the existing Constitutional perspective.
Justiciability of fixation of judge-strength
Justice Ahmadi on the issue of fixation of judge strength noted the view of Justice Tulzapukar in S.P. Gupta vs. Union of India (1982) in this regard wherein he observed that “it would not be appropriate for the Courts to issue a writ or direction to the President to fix the judge-strength in High Courts under Article 216 as it is a purely executive function unless forced by glaring circumstances.“ He also noted the view of Justice Venkataramiah wherein he had ruled that the issue of fixation of judge-strength of the High Courts can be subjected to judicial review to a limited extent such as for issuing a mere direction for the performance of duty under Article 216. Accordingly, he observed that the power to issue a writ or direction to the President to review and fix the judges’ strength in the High Courts can be exercised by the Court to a limited extent and in exceptional circumstances.
He examined the ambit of judicial review to decide the issue of justiciability of the fixation of judge-strength. He noted that any administrative action resulting from the performance of duty may be judicially reviewed on 3 grounds namely illegality, irrationality, and processual impropriety. He further noted that in cases where the duty is not discretionary but is to be performed mandatorily as per the statute and if it has not been performed, Courts can issue a mandamus for the performance of such duty.
Furthermore, Justice Ahmadi examined the ambit of judicial review concerning the duties which are discretionary in nature. He observed that a direction can be issued to the executive authority to exercise its discretion and decide if the performance of such discretionary duty is necessary within an equitable time. However, he clarified that a mandamus of such a limited nature can be issued only with the backing of sound legal principles. Therefore, he ruled that a mandamus of a limited nature or a direction can also be issued for the fixation of judges’ strength.
Analysis of Supreme Court Advocates on Record Association vs. Union of India (1993)
The Court noted various debates that took place while drafting the Constitution and also the provisions relating to judicial appointments in the pre-independence era legislations. They noted that the primary intention of including the consultation process in the relevant provisions was to ensure the independence of the judiciary not only after the appointment of the judges but also during their appointments. It was to ensure that the judicial appointments were free from any kind of political influence.
The Court also referred various precedents, judicial appointment processes in other nations, and significant juristic works for examination of the key Constitutional issues involved in this case and ultimately delivered a balanced judgement ensuring the protection of the independence of the judiciary. Although the decision might not have been perfect, it attempted to ensure the process of judicial appointment was free from the executive influence as an implied aspect of separation of powers which has also been mentioned in Article 50 of the Constitution.
Simultaneously, it is important to highlight that the Court in the instant case failed to address some of the other pertinent concerns that occur with the collegium system such as the lack of transparency or accountability.
Issue-wise analysis
The issue wise analysis of the judgement is discussed as follows.
Import of the term ‘consultation’
The first major issue was the import of the term “consultation” occurring in Art. 124. The majority held that it indicates an integrated, participatory, and consultative process. This entails the full discharge of constitutional obligations on the part of constitutional functionaries. Various approaches have been used by the judges to show that “consultation” means occurrence or primacy notably among which are”
The Chief Justice of India as a ‘PaterFamilias’ (head of the family) would be in the best position to judge.
In contrast to other constitutions, the Indian constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief Justice of India cannot be regarded as an inferior position.
The practice of appointments has become an inseparable part of the constitution leading to the formation of a convention. This convention does not allow the making of an appointment without the concurrence of the Chief Justice of India.
The central government being a litigant in a large number of cases before the court cannot be a party to the appointment of judges.
All the judges have also given the maintenance of the independence of the judiciary as a reason.
The initiation of the proposal must be made by the Chief Justice of India. In the case of a High Court, the proposal must emanate from the Chief Justice of that concerned High Court. The Chief Justice of India is expected to initiate any proposal for transfers. Further, a check has been placed at the discretion of the Chief Justice of India, who is now bound to consult with two of his senior-most colleagues. Thus the Chief Justice of India will act as a representative of the collegium. If a proposal for appointment is made by the collegium and is turned down by the central government, there are two possibilities. These depend upon the concurrence of senior-most colleagues. The other two judges are of the view that it must be withdrawn, the recommendation will be withdrawn. However, if they are in concurrence with the Chief Justice of India, the recommendation will be made again and it has to be accepted.
The criteria for appointment
In relation to the appointment of the Chief Justice of India, the majority held that seniority must be the prevailing criteria, provided of course the person in question is fit. In relation to the appointment of judges to the Supreme Court, the seniority of the judges in the High Court as well as their combined seniority have to be given weightage. Further, the legitimate expectations of the judges slated for elevation must be kept in mind.
The transfer of high court judges
Consent of the transferee is irrelevant. However, the personal factors of the transferee must be kept in mind by the Chief Justice of India while affecting the transfer. This is in conformity with the decision rendered in the SP Gupta case. The transfers affected must not be deemed to be punitive.
Justiciability of such transfers is not possible, except on the ground that a transfer was not made on the recommendations of the Chief Justice of India.
Justiciability of judge strength
The fixation of judge strength is justiciable but, it must be shown that lack of strength leads to “slow justice”, (as it is mandated by article 21, that speedy justice in courts is a fundamental right in respect of criminal trials) The opinion of the Chief Justice of India and the Chief Justice of respective High Court must be taken into account.
Appointment of the less privileged class
Justice Ratnavel Pandian has devoted a substantial part of his judgement throwing light on the inadequate representation of certain classes. He has adduced statistics to show that women, OBCs, SCs, and STs have not been given adequate representation. He has, therefore, placed an onus upon the government to forward the list of these classes, upon which the Chief Justice of India shall decide.
Precedents referred
The bench noted and referred to various precedents while examining the issues involved in the case. The fundamental decision that was referred to was S.P. Gupta vs. Union of India (1982) since it was the judgement that was being reconsidered. Several pertinent observations relating to the Rule of Law, Independence of the Judiciary, transfer of judges, and many other aspects were noted, affirmed, and disagreed by the bench in the instant case. The second important decision that was noted was Subhash Sharma and Ors. vs. Union of India (1990) as it was also in the same regard.
Various other relevant precedents were also noted and referred to by the bench while analysing the issues. A few of the precedents noted by the majority opinion are as follows.
Sub-committee on Judicial Accountability vs. Union of India (1991)
The Hon’ble Supreme Court, while examining the interpretation of Constitutional provisions concerning the independence of the judiciary noted certain observations made by a Constitution Bench in the case of the Sub-committee on Judicial Accountability vs. Union of India (1991).
The Hon’ble Apex Court, in this case, was dealing with writ petitions filed on issues relating to the removal of judges under relevant Constitutional provisions and the Judges Inquiry Act, 1968. The Court had noted that the case involved issues of Constitutional importance concerning the interpretation of Articles 121 and 124 and the Judges Inquiry Act, 1968.
The bench in the said case had observed that it was necessary for the courts to take a synopsis of the Constitutional provisions relating to the judiciary and its independence before examining the merits of the case. It had ruled that the Court while interpreting such provisions, must adopt an interpretation that would strengthen the fundamental features and the basic structure of the Constitution. It was observed that the Rule of Law is a fundamental feature of the Constitution embodied in the Constitutional Structure. Furthermore, the independence of the judiciary was observed as an important facet of the Rule of Law.
The Hon’ble Court noted the aforementioned observations while noting that the interpretation of the Constitutional provisions must be in accordance with the fundamental concepts of the Constitutional structure.
Indira Nehru Gandhi vs. Raj Narain (1975)
The Court while discussing the concept of the Rule of law and the scope of discretionary powers of the public authorities noted the observations made by Hon’ble Justice Mathew regarding the significance of the concept in Indira Nehru Gandhi vs. Raj Narain (1975). The Hon’ble Supreme Court, in this case, was dealing with a challenge against the judgement of the Allahabad High Court in which the Court vacated the seat held by the appellant on the grounds of electoral malpractices.
Justice Mathew, in this case, noted the decision of Kesavananda Bharati vs. State of Kerala (1973) wherein the majority view ruled that the rule of law is an essential part of the basic structure of the Constitution along with democracy. He then proceeded to observe that the rule of law suggests the universality of the spirit of the law which excludes arbitrary action of the government officials. He noted that the concept of the rule of law is to make something non-expressible into a reality. He further observed that the concept of the rule of law is based on individual liberty and aims to harmonise two contrasting aspects of law i.e., individual liberty and public order. also noted the opinion of Sir Ivor Jennings where he addressed the concept as an unruly horse.
Justice Mathew further went on to note Dicey’s definition of the concept wherein he explains it as “the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government.”
Accordingly, after noting the aforementioned observations, the court (majority opinion) in the instant case ruled that there must be scope for discretionary power within the functioning of the rule of law, even though such discretionary power is minimal in extent.
Ashok Kumar Yadav vs. State of Haryana (1985)
The Court in the instant case noted the observations made by Hon’ble Justice Bhagwati in a case concerning the selection of candidates for judicial appointments in Ashok Kumar Yadav vs. State of Haryana (1985).
The Hon’ble Supreme Court was dealing with a Special Leave Petition (appeal) filed against the decision of a division bench of the Punjab and Haryana High Court setting aside certain selections made by the State Public Service Commission to the Haryana Civil Service and other related services. The Constitution bench in this case delivered a unanimous ruling and set aside the decision of the High Court.
Justice Bhagwati, while discussing and examining the process of judicial appointments, noted the practice of inviting a retired judge of the High Court as an expert in the appointment process. He observed that, while making appointments for the state judicial services, it is extremely important to ensure competent and able persons with great integrity are selected for the post. He cautioned that the failure to such care may lead to having incompetent and dishonest judges who will impose dangers to the democratic polity of the State. Hence, he observed that it is essential to nominate a sitting judge of the High Court as an expert in the appointment process particularly in the interview rather than a retired one. He observed that such a nomination is due to the fact that such a nominated person as a sitting High Court judge knows the quality and integrity of the candidates appearing for the interview.
Furthermore, he ruled that the advice rendered by the nominated person must be accepted by the chairman and members of the Public Service Commission. However, he clarified that such advice may not be accepted in the presence of strong reasons for non-acceptance, which must be recorded in writing.
The Court (majority opinion) in the instant case concurred with the aforementioned observations and ruled that it applies to the appointments made to the superior judiciary as well.
Union of India vs. Sankal Chand Himatlal Sheth (1977)
The Hon’ble Supreme Court, in the instant case, while ruling upon the issue of prior consent for making transfers under Article 222 of the Constitution noted the ruling delivered in Union of India vs. Sankal Chand Himatlal Sheth (1977).
The Court, in this case, was dealing with an appeal filed against a decision of the Gujarat High Court rejecting the writ petition of the appellant. The appellant, who was a judge, through the said writ petition, had challenged the notification issued by the President which prescribed the transfer of the appellant from the High Court of Gujarat to the High Court of Andhra Pradesh. He had challenged the transfer based on the grounds that the transfer was proposed without his prior consent which was contended to be a requisite as per Article 222. The Special three-judge bench had unanimously rejected the challenge of the appellant against the notification of transfer.
The Hon’ble Supreme Court in this case upheld the decision of the Gujarat High Court and subsequently the notification of transfer. It ruled that the protection of the independence of the judiciary by interpretation of the provision under Article 222 does not mean that a judge cannot be transferred without his prior consent. It held that the power to transfer judges from one High Court to another is conferred on the President by the Constitution in the public interest and such power can be exercised in the public interest only.
The Court in the instant case affirmed the aforementioned observations and the ruling and held that there is no requirement of prior consent of the judge before his transfer under Article 222. It held that the entire issue of the transfer of judges had already been decided in the case mentioned above and also in S.P. Gupta vs. Union of India (1982) and hence it was not necessary to repeat the same.
Several developments have been witnessed concerning the judicial appointments since this decision. One of the immediate consequences of this decision was the establishment of the collegium system followed by its strengthening in the third judges case. Nearly two decades after the third judges case, legislation seeking to replace the collegium system was enacted which was struck down by the Hon’ble Supreme Court in the fourth judges case retaining the process of judicial appointments through the collegium system. Currently, judicial appointments are made through the collegium system process.
Collegium System
Collegium system refers to the procedure or structure laid down by the Hon’ble Supreme Court for judicial appointments. It is a process or mechanism of judicial appointments by the collegium. This particular system has evolved through judicial precedents and was laid down in the instant case.
According to this system, a collegium is present at the national level in the Supreme Court and at the state level in various high courts.
Collegium refers to a three-member body comprising the Chief Justice of India and his two senior-most colleagues of the Supreme Court. The collegium of a High Court consists of the Chief Justice of that High Court along with his two senior-most colleagues.
The process of judicial appointments through the collegium system involves two steps which are as follows.
Recommendation of names by the collegium for an appointment or transfer of a judge.
Appointment or transfer of judge(s) as per the recommendation of the collegium.
Third Judges Case
The case of In Re: Special Reference No. 1 of 1998, popularly known as the third judges case is not any kind of petition or PIL but is a reference made to the Chief Justice of India by the President under Article 143 of the Constitution.
The President of India on July 23rd, 1998, exercising his authority under Article 143 of the Constitution, made a special reference to the Hon’ble Supreme Court for the consideration of the questions of law relating to judicial appointments and to submit its views/opinion accordingly. The issues specified by the President were broadly decided in S.P. Gupta vs. Union of India (1982). The Hon’ble Apex Court examined the questions/issues of law referred by the President and delivered the ruling on 28th October 1998 and affirmed the decision rendered by itself in S.P. Gupta vs. Union of India (1982)
One of the significant questions that were referred for consideration by the President was whether the Chief Justice of India was supposed to consult only two senior-most judges under Article 124(2) or whether wider consultation was required.
The Hon’ble Supreme Court in this case strengthened the process of judicial appointments through the collegium system. The Court increased the composition of the collegium from a three-member body to a five-member body. It changed the composition of the Chief Justice along with his two senior-most colleagues to four senior-most colleagues. However, the composition of the High Court collegium remained the same.
National Judicial Appointments Commission (NJAC) and the Fourth Judges Case
The National Judicial Appointments Commission (hereinafter referred to as the “Commission” or “NJAC”) was a body that was established to replace the existing collegium system for making judicial appointments. This commission was established under the National Judicial Appointments Commission Act, 2014 after its enactment in 2014 along with the enactment of the 99th Constitutional Amendment Act to amend the Constitutional provisions relating to judicial appointments.
The 99th Constitutional Amendment Act inserted Articles 124A, 124B, and 124C which provided for the establishment, composition, and functions of the commission. The composition of the commission included the following.
The Chief Justice of India as the ex-officio chairperson of the commission
Two senior-most judges of the Supreme Court.
The Union Minister for Law and Justice.
Two eminent persons, were nominated by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha.
The Constitutional validity of the National Judicial Appointments Commission Act, 2014, and the 99th Constitutional Amendment Act was challenged before the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015) on the grounds that it violated the independence of the Judiciary and hence the Basic Structure of the Constitution.
The Hon’ble Apex Court delivered its decision in this case on 16th October 2015 and declared both the impugned legislations as unconstitutional and void and retained the collegium system for judicial appointments.
The bills proposed to replace the collegium system with the National Judicial Commission for making judicial appointments by insertion of Articles 124A to 124E in the Constitution.
The body proposed by this bill was similar to the National Judicial Appointments Commission Bill, 2014, except for one change in the composition. In the latest bill, the Union Minister for Law was replaced by the Attorney General of India. Although the bill was passed in the Rajya Sabha, no major development was witnessed in this regard later.
Current Position
The judicial appointments, currently, are made through the collegium system. Although the system has been subjected to various criticisms and also a few unreasonable delays in recent times, it has been retained.
The composition of the collegium is currently based on the decision rendered in the third judge’s case. The Supreme Court collegium is a five-member body comprising the Chief Justice of India and his four senior-most colleagues whereas a High Court collegium is a three-member body comprising the Chief Justice of the High Court and his two senior-most colleagues.
Criticisms
The collegium system has been strongly criticised in various instances by members of the bar, civil society, government, and sometimes ex-judges too on various grounds such as transparency, accountability, and recently, the delay in the appointment of judges whose names have been recommended by the collegium. However, it has been pointed out by the members of the bar as well as the judiciary who are critical of this system that the collegium system is the only better option at this juncture to ensure the independence of the judiciary.
One of the major grounds for criticism is the lack of transparency and accountability. The collegium system is often criticised as a process that takes place behind closed doors. The process and working of collegium are often not placed before public space which raises concerns about the transparency in the system. It is also criticised because of the lack of accountability of the collegium. The collegium is completely separated from the executive and is not accountable to any administrative body resulting in a lack of a system of checks and balances or accountability. As mentioned earlier, the working of the system takes place and is not placed before the public which makes it non-accountable directly to the public as well.
The collegium system is also criticised due to concerns relating to chances of nepotism and favouritism in making judicial appointments. Simultaneously, unequal representation also poses a concern among the public causing criticism of the system.
Additionally, one of the major concerns that have been recently developed regarding the collegium system is the vicious cycle of recommendation and abeyance of appointment between the collegium and the executive. It has been witnessed in recent times that a few names that have been recommended by the collegium to the executive for appointment are either delayed for a long time or returned without appointment without providing any reasons for such action. This has led to a kind of tussle between the executive and the judiciary.
It is equally important to address the concerns regarding the system while retaining the collegium system to ensure the independence of the judiciary. One of the solutions could be to include the process with the scope of the right to information to ensure transparency is maintained. As the views of the judges, while nominating any individual for judicial appointment are already recorded in writing, it would be appropriate to place them in the public domain if and when required to decimate the concerns. This would also help in addressing the aspect of accountability since transparency and accountability go hand in hand.
Conclusion
The Hon’ble Supreme Court touched and ruled upon a very crucial aspect in the instant case and delivered a significant ruling that might have been the appropriate one at that juncture. However, it is important to note that changes are necessary according to the changing scenarios. Although the Hon’ble Court attempted to strengthen the judicial appointment process through the collegium system in the third judges case, there were still a few loopholes or concerns that needed to be addressed and which still exist even in the times.
The enactment of legislation to secure the Right to Information Act of citizens which gives the citizens a right to seek information relating to public affairs and eventually empowers them to seek accountability was a landmark step towards ensuring transparency in matters relating to public affairs. While the Courts have always advanced the cause of transparency in almost all public affairs, it is also necessary to ensure transparency in the judicial appointment process, even though it might be to a minimal extent to secure privacy. It is significant to strike a balance between transparency and individual privacy.
It is essential to secure the independence of the judiciary and protect it from all forms of executive influence which can be done through the collegium process. However, addressing the concerns regarding the process is also important as it will strengthen the public trust in judicial appointments and other judicial affairs which seems to be currently lacking to some extent. The balance of transparency and independence of the judiciary may be attempted to be established by applying or experimenting with one of the suggestions mentioned above.
Frequently Asked Questions (FAQs)
Which case is referred to as the “First Judges Case”?
S.P. Gupta vs. Union of India (1982) is popularly known as the First Judges Case.
What was held in the “First Judges Case”?
The Hon’ble Supreme Court in S.P. Gupta vs. Union of India (1982) held that the Chief Justice of India does not enjoy primacy of opinion in matters relating to judicial appointments. It also held that the matter of fixation of judge-strength cannot be decided by judicial review or by issuing a mandamus to the executive.
Which case is referred to as the “Second Judges Case”?
The instant case, Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) is popularly known as the Second Judges Case.
What was held in the “Second Judges Case”?
The Hon’ble Apex Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) overruled the decision rendered by itself in the First Judges Case.
It ruled that the Chief Justice of India has a primacy of opinion in matters concerning judicial appointments. It also ruled that the matter of fixation of the High Courts’ judge-strength is justiciable to a certain extent.
Which case is referred to as the “Third Judges Case”?
In Re: Special Reference No. 1 of 1998 is popularly known as the Third Judges Case.
This case is a special reference made by the President to the Supreme Court under Article 143 of the Constitution for reconsidering the ruling delivered in the Second Judges Case.
What was held in the “Third Judges Case”?
The Hon’ble Supreme Court affirmed the ruling of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) and strengthened the appointment process by the collegium System.
It expanded the composition of the collegium from a 3-member body to a 5-member body.
Which case is referred to as the “Fourth Judges Case”?
Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015) is popularly known as the Fourth Judges case.
What was held in the “Fourth Judges Case”?
The Hon’ble Supreme Court declared the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014 as unconstitutional and upheld the collegium system for judicial appointments.
The aforementioned legislations prescribed the establishment of a National Judicial Appointments Commission for judicial appointments replacing the Collegium System.
Which case led to the establishment of the collegium system?
The Second Judges case i.e., the case of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) led to the establishment of the collegium system. Besides, the Third Judges Case strengthened the process of the collegium system.
What is the current process of judicial appointments?
The judicial appointments are currently made through the collegium system process.
What is the Collegium System?
The collegium system is a process or mechanism of judicial appointments by the collegium. This system has evolved through judicial decisions.
The system consists of two stages namely the recommendation of names for appointments and transfers by the collegium followed by the appointment by the government.
The Collegium refers to a group of incumbent judges who decide and recommend names for judicial appointments and transfers.
What is the composition of the collegium?
The Collegium of the Supreme Court is composed of five judges which includes the Chief Justice of India as the head of the collegium along with his four other senior-most colleagues.
The Collegium of the High Court consists of the Chief Justice of that High Court along with 2 other senior-most judges of that Court.
How is the Chief Justice of India selected or appointed?
The Chief Justice of India is appointed based on seniority which is decided by the date of appointment of judges in the Supreme Court.
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