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VOLUME : 4 (2017)

LLOYDLAW

COLLEGE

L L O Y D

EDITORIAL ADVISORY BOARD CHAIRMAN

Mr. R. VenkataramaniSenior Advocate, Supreme Court of India

MEMBERSProf. (Dr.) S. Sivakumar, Member, Law Commission of India/ Professor,

Indian Law Institute/ HonoraryChairman, Academic Advisory Board, Lloyd Law College

Prof. (Dr.) Satish Chandra Shastri, Dean, College of Law & Governance, Mody University, Rajasthan

Prof. (Dr.) D.K. Sharma, Dean, Department of Law, Banaras Hindu University, Varanasi

Prof. (Dr.) Tara Prasad Sapkota, Dean, Faculty of Law, Tribhuvan University, Kathmandu, Nepal

Prof. (Dr.) Md. Rahmat Ullah, Dean, Faculty of Law, Dhaka University, Dhaka, Bangladesh

Prof. Jayadev Pati, Dean, SOA National Institute of Law, BhubaneshwarProf. V.R.C. Krishnaiah, Former Dean, Faculty of Law, Sri Venkateshwara

University, TirupathiProf. (Dr.) R.K. Chaubey, Head, Department of Law,

Allahabad UniversityDr. Manish Arora, Director, Universal Law Publishing Co., New Delhi

Prof. (Dr.) Manjula Batra, Professor, Faculty of Law, Jamia Millia Islamia, New Delhi

Prof. (Dr.) G. Kameswari Goda, Director (Research), Lloyd Law College Research Centre

EDITORIAL COMMITTEE

CHAIRMANDr. Md. Salim, Director, Lloyd Law College, Greater Noida

MEMBERSMr. Anup Kumar Varshney, Joint Secretary, Legislative Department,

Ministry of Law & Justice, New DelhiProf. (Dr.) V.T. Thamilmaran, Dean, Faculty of Law, University of Colombo,

Colombo, Sri LankaProf. S.S. Jaswal, Registrar, Himachal Pradesh National Law University,

ShimlaProf. (Dr.) Lisa P Lukose, Associate Professor, University School of Law &

Legal Studies, GGS Indraprastha UniversityMs. Meera Furtado, Commonwealth Moot Coordinator and Faculty, London

Metropolitan University, London, United Kingdom

LLOYDIANS

MANAGING EDITOR

Mr. Manohar Thairani

President, Lloyd Law College

EDITOR-IN- CHIEF

Mr. Akhilesh Kumar Khan

Deputy Director, Lloyd Law College

EDITORS

Dr. Kavitha Chalakkal

Assistant Director (Research), Lloyd Law College

Ms. Anjali Prabhakaran,

Faculty Member, Lloyd Law College

CO- EDITOR

Mr. Rahul Sinha Roy

Faculty Member, Lloyd Law College

STUDENT EDITORIAL COMMITTEE

STUDENT EDITORS

Mr. Kumar Deepraj� � Ms. Parul Malik

MEMBERS

Mr. Shahzeb Ahmed Mr. Chandrakant Tiwari

Ms. Shreya Arneja Mr. Harjodh Singh

Ms. Samar Parveen� Mr. Sequira Byron

Mr. Kshitij Ray� Ms. Richa Bias

INFORMATION AND DISCLAIMER

Cite this volume as 4 Lloydians (2017)

Lloydians: International Student Law Review is an

international annual, peer-reviewed Student Law Review of

Lloyd Law College. Papers for this journal are invited in the

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theme selected for this issue of Lloydians is 'The Supreme

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© Lloyd Law College

CONTENTS

1. Cyber Crime : Atul Rana 05 The Immediate Threat and Legal Issue Involved in Counteract

2. The Perversion of Public Kunika Khera 24 Interest Litigation

3. Study on Censorship in India with special Niranjan E V 35 Reference to Religion and Obscenity Vishaka Nikkam

4. The Right to Education: Pritam Banerjee 49 A Case of Judicial Activism Rajat Halder

5. Aadhaar, A Catalyst to Shobhit Tiwari 61 Downfall of Privacy Faizan Mohd. Khan

6. Need of Right to Property to be Yash Tandon 80 reconsidered back as a Fundamental Right

7. Aadhaar, Right to Privacy and Aishwarya Agarwal 96 the Privacy Trade-offs: For Greater Benefits and National Interest

8. Sabarimala Controversy and Saumya Srivastava 106 Equality for Women: Question of Constitutionality of the Ban

9. Article 19-The Most Diverse Gopika. A. Aryad 118 Fundamental Right

10. Need for Extending the Harsh Vardhan Tiwari 128 Basic Structure Doctrine: Bharat Judicial Review of Election Disputes

11. The Constitution of India on Uniform Civil Code: Divyanshu Chaudhary 143 Looking Beyond the Interested Regimes

12. Supreme Court of India and its Shivansh Shukla 162 Constitutional Interpretations: Akrity Aishwarya The Journey So Far (1950-2017)

CYBER CRIME: THE IMMEDIATE THREAT AND

LEGAL ISSUES INVOLVED IN COUNTERACT *Atul Ratna

Abstract

With the evolution of computer age in 1970's and thereafter the advent of internet in 1990's, the whole world has experienced the revolution. This revolution includes the establishment of global network for computers, advanced system of technologies and interconnection between technologies, organizations and individuals. But at the same time, it paved the way for the commission of many crimes. The peculiarity of these crimes was that it can be committed by offenders without his physical presence at the place wherein the offence is committed. Sometimes, it may become very difficult to even trace the actual crime and the place of commission. This paper, in its limited scope, deals mainly with the legal issues involved in countering the cyber crime. The authors begin by analyzing the essence of law to address any crime followed by the peculiarity of cybercrime and present regulations for it. The paper continues by dealing with the critical issues in countering cyber crime i.e, jurisdictional, enforceability and procedural, as briefly as possible. Further, the 'lex loci delicit' rule within internet jurisdiction and the barriers to successful investigation have also been covered in this paper. Finally, authors have critically analyzed all the legal issues and then suggested the ways to address these crimes more quickly successfully.

I Introduction

THE OLD proverb says that “criminal law is the best when it 1criminalizes the least”. It has the same purpose as any other body of law

and aims to regulate the conduct of individuals in their interpersonal

relations and in their relation with society. To counter crimes and to

achieve justice, become the true objective of the criminal law. The birth

and evolution of courts brought with it the notion of justice and a fair deal.

From the days of Manu to the present age of the internet, behavior which

is harmful to the society at large has not been tolerated and has been dealt

strictly. Howsoever, the job of the investigation was never simple. Much

before an accused is proved as criminal, an entire gamut of law throws a

security wall around him so that his trial meets the standard of equity and

* 5th year student, B.A. LL.B Central University of South Bihar. 1 Cherif Bassiouni, Substantive Criminal Law (Thomas Publishers, United States of America, 1978).

the ends of justice. Thorniest issues of jurisdiction and evidence

sometimes lead many investigations to be left at its trial stage.

Evolution of the “computer age”, during 1970's, led to the

establishment of a global network of millions of computers connected

with one another. Today, internet has become part and parcel of human

life. It is regarded as a complex system of technologies and

interconnection between technologies, organizations and individuals.

The internet world is borderless having no relevance to geographical

boundaries and distances. It also permits immense privacy to its netizens.

Whether it is electronic communication through email, or online chat, or

buying and selling of goods through auction websites, or publishing any

document or music or videos, all these can be done with utmost secrecy

and privacy. Moreover, data or information is so volatile, as it can be

easily erased, modified, moved or transmitted and concealed through

encryption techniques.

II Cyber crime: An advanced offence

The world of internet has provided a wide area for the commission of

many crimes. These crimes are termed as “cyber crimes”, are distinct

from other crimes in many ways. It takes nature from the internet and

cyberspace; moreover, the privacy provided by the internet makes these

criminals almost invisible at the time when crimes are committed.

Physical presence at the bank was required, to rob a bank in the pre-

internet era, however, with electronic banking which is easily accessible

through the internet, physical presence is not necessary to commit the

robbery in this digital age. It can be said to be technology-based crimes, in

which technology is the weapon as well as the target at the victim's end,

and these weapons are easily and quite freely available on the internet

itself. For committing most of these crimes including hacking, phishing,

data theft, identity theft etc., a deep understanding of computers and the

internet is required and these criminals are technocrats who understand

the intricacies of information technology.

With the growing invasion of information technology in our lives,

6 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW

the injury and losses caused by cyber crimes are of a huge magnitude.

Today, even the critical systems such as airports, defense and power are

run through information technology. Cyber crimes make these critical

systems vulnerable. Hacking into these and misappropriation of funds

through phishing can cause huge losses. Another peculiar characteristic

of cyber crimes is that, they are organized crimes. A few years back,

online lottery and a 'generous' foreigner leaving a huge fortune in his will

in favor of victims were the typical inducements to defraud vulnerable

people into paying nominal 'administrative' charges to scamsters, for

winning the generosity. Thousands of people were cheated through such

fraudulent 'get-rich-quick' schemes that allegedly originated from 2Nigeria.

For cyber crimes, 2007 can be said to be a landmark year in the

history of the internet, the year in which cyber crimes became as

organized as legitimate and lawful businesses. Cyber criminals adopted

innovative strategies to induce and trap the Internet users into craftily

designed schemes that were more sneaky and erudite than ever before. It

has been observed that cyber criminals are now following the footsteps of

lawful businesses, by advertising themselves on popular websites and

steal data of unsuspecting internet users. With the growth of computer

users using firewalls and other security software, cyber criminals have

found ways to induce internet users to access and view video content on a

website, to find security vulnerability on the user's computers and thereby

assume control over them.

Malicious video clippings were posted on popular websites using

the cover-up of advertisements. Criminal hackers timed their attacks with

major events. For instance, due to the heavy rush of online shopping,

these criminal tried to install their cyber weapons into the personal

computers of visitors to their sites. It was also the year for dangerous

viruses to inflict personal computers. Also called the “storm worm”, this

virus was mounted on videos showing violent storms on the European

2 Vivek Sood, Cyber Crime, Electronic Evidence & Investigation: Legal Issues 102 (Nabhi Publications, New Delhi, 2009).

Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 7

coast, which invited the curiosity of millions of users who then became

victims to cyber criminals assuming control over their personal

computers. Cyber fraud through “phishing” i.e., inducing an internet user

to part with important data through impersonation, caused an estimated

loss of $3.2 billion to U.S. based consumers.

These days, cyber fraudsters are masquerading as top-notch multi

national corporations offering millions for being a customer or offering 3truckloads of cash or reward a person on their anniversary. The modus

operandi of these fraudulent is to masquerade and impersonate as the

brands one trusts most including banks. The internet is also serving as a 4

market for crimes such as poaching wildlife. Traditional crimes such as

extortion and criminal intimidation have also found the internet as their

platform. The recent incident of Anoushka Shankar, daughter of

legendary sitar player Pandit Ravi Shankar, being blackmailed by the

accused Junaid Ahmed Khan, who had allegedly hacked into Shankar's e-

mail account and obtained certain photographs of her that he was using to 5blackmail her, shows the mixing of traditional and cyber crimes.

III Present regulations for cyber crimes

Due to their peculiar nature, cyber crime investigation is technical

and it is difficult to collect direct evidence. At the same time, there are

devious technological ways to evade the investigative tools of

identification. These crimes are puffed up crimes, criminal trespass into a

computer system has been called “hacking”. The growth of information

technology has not only led to the growth of cyber crimes which are

undoubtedly a threat, but also the hype of the brand “cyber crimes”. The

hype has led to draconian laws, the severe response from law

enforcement agencies, and even the judiciary when it comes to dealing

with cyber crime cases. Severe social censure and stigma is attached to

cyber crimes. Due to the hype surrounding cyber crimes, new laws have

3 “Mega Millions in Jackpot- A Possibility” The Economic Times, Oct. 19, 2009. 4 “Poaching from Veerappan's Forest to the Net” Hindustan Times, Sept. 20, 2009.5 “Anoushka Shankar, Cyber Crime, Blackmail Case” Hindustan Times, Nov. 21, 2009.


been legislated to address issues like cyber terrorism. Whenever a cyber

crime is committed, it is projected as if the world has been rocked.

To achieve the purpose of criminal law and to check the behaviour of

the individual online, traditional laws have geared up to some extent to

suit the changing requirements of the internet age. Moreover, new

technology specific laws are coming up in more advanced societies to

meet the changing legal needs. The internet boom has affected the

criminal network in two ways:-

i. It has expanded the horizons of criminal activity giving it a global

arena; and

ii. It has empowered the no deviant and hitherto inactive criminal to 6take up new criminal activities which are mainly online.

Some of the cyber crimes like hacking, obscene electronic material,

online stalking and a few others have been brought within legal

entrenchment, but many others still escape regulation because of their

esoteric nature. The harmful behaviour online cannot be at once termed

as crime and hence, there are certain infractions which are also harmful 7and thus, need legal regulation.

The European Commission's Action Plan promoting the safe use of

the internet, 1997 was one of the earliest pieces of legislation which

recognises the need for a multi-layered and multi-juridical approach to

the regulation of internet content's. Quite recently, the Budapest

Convention on Cyber crime 2001 considered the most systematic

approach towards regulating harmful and criminal activities in

cyberspace. The European Commission aims at approximating

substantive law in the area of high-tech crime where it was considered the

point that with common definitions, incriminations and sanctions, high-

tech crimes could be successfully regulated.

6 Ken Pease, Crime Features and Foresight: Challenging Criminal Behavior in the Information Age (University College Press, London). 7 nd Talat Fatima, Cyber Crimes 336 (Eastern Book Company, New Delhi, 2 edn., 2016).


Four areas were focused upon:

i. Offences against the confidentiality and integrity of computer data

and system;

ii. Computer-related offences;

iii. Content-related offences; and

8iv. Offences related to infringements of copyright and related rights.

Need for a legislation to regulate electronic activities is as important

as the need of a civilized society to have law. Though a school of thought

believes that cyberspace should be left ungoverned, yet it is not

acceptable to a civilized society as that will lead us to disastrous end

where cyberspace shall turn into veritable legal Siberia where greed,

gambling, pornography and sex will reign supreme. Today, technology

has surpassed law and it has emerged as the shaping force of law. The

crime is committed in virtual surroundings while its effect is found in the

real world. There comes biggest challenge as there are crimes but no laws

to punish them and no suitable courts to try them.

III Issues in countering cyber crime

Jurisdictional issues

It is the worst casualty of the technological spree, especially the

territorial aspect of it, has remained a complex issue in transnational and 9organised crimes. By their very nature, the majority of internet crimes,

whether cyber stalking, unauthorized access, spamming or any other type

are done remotely, very often from a different state or country.

Judicial jurisdiction can be defined as, “the scope of the court's

power to examine and determine the acts, interpret and apply laws, make

orders and declare judgments. Geographic area, the type of parties who

appear, the type of relief that can be sought, and the point to be decided

8 Supra note 7.9 F. Lawrence Street and Mark P. Grant Law of the Internet (Lexis Nexis, New Delhi, 2004).


10may limit jurisdiction.” The concept of judicial jurisdiction of a court

emanates from the sovereignty theory and territorial theory of state.

Under this classic formulation, each state is supreme and has

unquestionable authority within its geographical limits. It is considered

as a direct attack on a state's sovereignty if a judicial process of a foreign 11state is exercised on its territory.

In the pre-internet period, personal jurisdiction was understood in

terms of territoriality. Both civil and criminal justice systems are 12

governed by the fundamental rule of jurisdiction. So powerful is the rule

that a wrong jurisdiction nullifies the most equitable verdict. Interaction

among different societies, be it on a commercial level, contractual level

or a social level, is as old as the man himself. Criminal link between

different communities or countries, though on individual level, is also a

part of it. This interaction gives rise to several legal complexities when it

comes to dispute resolution, settlement of rights or punishing a criminal,

as legal provisions of various societies are varied if not opposed to each

other. It was all about the real world, where boundaries are well

demarcated and laws are defined and jurisdictional issues are resolved by

various principles propounded for the purpose.

Internet jurisdiction: “lex loci delicti” rule.

The internet has changed the lex loci delicti rule. When one is online,

one is almost everywhere. While jurisdiction in erstwhile interpretation-

spelled limitation of some sort, be it subject-matter related or territorial,

in the internet age it means worldwide. Court jurisdiction over a party has

most often been determined by the presence of the defendant in the state

where the court sits. However, courts are now being called upon to

adjudicate jurisdictional disputes arising out of the internet

communications in which the parties have little physical or geographic 13connection with each other or the jurisdiction. A website stored on an

10 Nygh PE & Butt P (Eds.) Butterworth's Australian Legal Dictionary.11 Pennoyer v. Neff, 95 US 714, 723-24(1877).12 E.P. Hetchel, “The Physical Presence Basis of Personal Jurisdiction Ten Years after Shaffer v. Heitner”, 433 US 186.13 Supra note 9.


internet, email sent through mass “mailing list” transmissions can reach

people in many diverse jurisdictions even though the transmitting party

did not specifically know or intend that someone from that jurisdiction

would become involved.

Uncertainty regarding the proper jurisdiction looms large on the

internet surroundings as the disputable conduct is transmitted through

myriad jurisdictions, home and foreign and it was the decision of the

plaintiff to download the information into the forum jurisdiction. The

consequent results are that the defendant or the accused is tried under

laws which are not applicable to him; often the defendant faces local bias.

Courts all around the world are showing an assertive attitude to extend

their powers beyond physical boundaries in order to help local parties.

Current court service of process rules allowed service via personal 14

service, regular mail and fax or in such manner as the court may direct. A

single act on the net is the work play of several participants, as there are

website owners, the online intermediaries, the host, the author or creator

of a piece of writing or painter, etc., the corporate, the end-user and so on.

Hence, a single infraction or wrong may involve all or some of these

parties and again as the nature of the internet goes, it is quite possible that

all of these come from various countries and various jurisdictions. In

such a case, even if one applies the traditional principles of jurisdiction,

some of these may fall in different jurisdictions by virtue of subject

matter jurisdiction and some may fall under yet another jurisdiction due

to personal jurisdiction and yet some of the participants may remain

uncovered by these principles. This leads to the birth of a law of

cyberspace based on private contracting on a global basis and enforced

by a combination of the system operators.

14 Supra note 7 at 343.


Traditional theories of jurisdiction are inapplicable to the internet 15due to the following reasons:

i. Material posted on the internet has worldwide audience;

ii. It is easy to move a website from one territory to another;

iii. A website can be hosted on one area, but directed at users in another

geographic location;

iv. Parts of a website may be hosted in one area, while other parts of the

website are hosted in another location; and

v. It is not always possible to determine where a website or user is

located.

Moreover, the advent of the internet overturned the century-old

established theories of jurisdiction which were deeply rooted in the

territorial and physical concept. While the internet absolutely negates

tangibility and terrestrial forms; applicability of laws of the physical

world are bound to face unprecedented legal hardships.

Inter-sovereign conflict, extension of laws of one state to another has

been an unimaginable concept unless it is backed by some treaty between

the two states. For the internet environment, this is the first requirement

as the borderless world knows no such established norms. The conflict

thus arises.

Most of the traditional theories of jurisdiction are over inclusive in

relation to the internet because they allow for the almost unlimited 16

exercise of judicial jurisdiction. The traditional view rests on the

concept that every sovereign state has unquestionable authority within its

geographical limits but when a website is created, the server is physically

located within the boundaries of the state concerned. While such state, as

according to traditional notions, has legitimate control over its subjects

and over the physical infrastructure of the internet, the particular web

page being visible in any part of the globe, all the states of the planet may

15 Supra note 11. 16 Adria Allen, “Internet Jurisdiction Today” 2269 J Int'l L & Bus (2001).


have applying the same traditional notions, equal authority and interest.

Another dimension of the traditional theories is that it advocates the

limits of a state's authority within its territorial boundaries. It shuns the

idea of crossing these boundaries. In the internet surroundings, if a

dispute arises, where the plaintiff and defendant are from two different

jurisdictions then the concerned states are forbidden to cross the limits.

Thus, the under inclusiveness of traditional concepts is revealed because

the states that want to regulate internet activities cannot effectively

enforce their laws against purveyors of harmful material through the 17

internet who are located outside their territorial borders.

Enforceability issues

Another issue concerning the internet is the enforceability of legal

provisions and enforcement of rights of individuals and nations in the

transient regime. The potency of a law is manifested in its enforceability.

The distinction between applicability and enforceability is fundamental 18

to the future development of internet law. It is easy to formulate laws on

the internet related issues, yet it is a herculean task to implement it. Thus,

the enforceability of law depends, much more than the courts, on its

normative force. The common man obeys law not because he is afraid to

face litigation but because 'there is a want to act lawfully'.

Thus, in the internet environment, the normative force of law is still

lacking. In fact, the cyber fraternity shows complete disregard to law

either because they are totally unaware of the law provisions or they have

easier ways to escape the noose. As observed by Chris Reed, the problem

of enforceability arises mainly due to multiplicity of jurisdictions as each

nation has a right to be emphatic in enforcing and implementing its own

laws. The courts, mainly in the area of criminal offences, find themselves

helpless due to lack of jurisdiction over a particular person.

17 Supra note 16. 18 nd Chris Reed, Internet Law: Text and Materials 292 (Universal Law Publishing, 2 edn., 2004).


Procedural issues: Barriers to successful investigation

Everywhere, everything and everyone is changing to electronics.

Invasion of Internet is on and being at the core of everything, it is

reshaping the world and rewriting the standards. It is, in fact, 19

reorganizing every way we live in. Modus operandi or the manner of

committing crime has changed to intangibles and so should the manner to

investigate it. Law enforcement officials throughout the world are

severely handicapped in tackling the new wave of cyber crimes. The

biggest impediment they face is total anonymity which the internet 20

provides to an intelligent hacker. It has become a herculean task with an

amalgamation of legal, technical and operational challenges being faced

by the investigators.

The various steps which are followed in the investigating process

include ascertaining the facts, identifying the criminal and his arrest,

securing evidence through search and seizure and presentation of

evidence in the court. These are the usual steps followed in investigating

real crimes but when it comes to cyber crimes, the job becomes a

mammoth one as the most peculiar feature of cyber crimes and the

activities related thereto is its intangibility and transience nature. It being

a disjointed venture, the investigation of cyber crimes suffers from some

practical and logistic impediments. The law-enforcers are required to

have contacts with their counterparts on the other side of the globe at

inconvenient times. The crucial legal documents are required to be

translated which becomes a cumbersome job. Moreover, witnesses from

non-English speaking countries need interpreters which places extra

financial burden on the state and also slows down the entire justice

process. Some countries do not show much enthusiasm in extending

investigatory cooperation.

As the crimes of the digital age involve geographical miles and

several wrongdoers, the biggest challenge before the law enforcers is to

19 L.C Amarnathan, “Cyber Crimes: Prevention and Control Strategies” CBI Bulletin 4 (March, 2002).20 S.C. Agarwal, “Cyber Crime: Prevention and Investigation” IPJ 80 (2002).


identify the infringer which is not easy. Someone e-mailing infringing

material or posting to a USENET newsgroup may do so from behind an

anonymous remailer, which offers the service of stripping identifying

material from e-mails and passing them on. Again, the person with the

account may be using a false e-mail identity, and even masquerading

behind a false internet protocol address commonly known as spoofing.

Often, a genuine internet protocol address helps in identifying the

computer but it is usually only partial as it may be helpful in only showing

that the sender was a subscriber to a particular commercial ISP. Where the

infringing material is held on a more permanent internet resource such

web page, or ftp site, it becomes difficult to identify the person who puts

up some material on the resource.

Collection of evidence requires the technical and investigative skills

of the law enforcement agencies. In cyber crime investigations, the entire

process consists broadly of first detecting the origin and route of the

messages from the criminal to the victim's system; then trapping or

acquiring the messages of interest; accessing the content of the messages;

and finally to attribute the message origin to a particular legal person. The

most controversial part of any investigation process is the search and

seizure of incriminating objects and which always clashes with the

privacy and other valuable rights of the defendant.

Internet evidence: Issues involved

Long before computers became a household appliance, telephone

companies and banks were using them to record, process and report

information that their businesses required. But today computers are no

longer the exclusive appliance of commercial domains rather common

man's need which is used to cover mines and mines of information.

People are accepting with thrill, the realization of the fact that how their

computers, computer disks, computer memory, data compilations, e-mail

messages sent and received, and all backup computer files could be made

use to extract evidence for a successful prosecution.

The internet has given to the legal world a dichotomy as with the


increase in data collection, wanted or unwanted knowledge of some

event is gathered. In fact production of such information in criminal

courts has given rise to evidential problems. To make computer evidence

more acceptable in law courts, there have been concerted efforts to

legislate on the subject, yet these have so far proved to be insufficient to

deal with this problem of information technology criminal law. Not only

that immense amount of data is stored but at the same time the new

challenge is that it is deleted with as equal ease as it is gathered with.

Thus, one has also to be cautious about digital evidence cover-ups.

Investigators are troubled by the fact that a user, with current

technologies can quickly delete long lists of relevant information with

little evidence of the event. Encryption of files by users and their claim

that they do not remember their password” are yet other problems which

make the path of investigation and prosecution all the more challenging.

Computer evidence being transient and volatile in by nature raises

many questions before it can be presented in a criminal proceeding as

evidence. On the basis of the methodology adopted in extraction of the

evidence, the computer evidence can be divided into the following three

categories:

1. Real evidence: It is the evidence created by calculations or analysis

generated by the computer itself through running software and the

receipt of information from other devices such as built-in-clocks and

remote sensors.

2. Hearsay evidence: It is some data is fed by human hand into the

computer system and later the computer produces it on the basis of

some command given to it then the kind of information produced is

hearsay evidence.

3. Derived evidence: It is a combination of real and hearsay evidence to

form a composite record and which is also treated as hearsay

evidence. Daily balance column of a bank statement is an example

of this kind of evidence.


So long, courts have been relying on evidence which is physical in

form and which is visible and seen by all. Before computer evidence is

appreciated as proof in law proceedings, it has to pass through certain

authentication tests and also it is tested on the basis of established rules of

evidence which are traditionally applied on physical types of evidence.

The Information Technology Act, 2000 has added a new section 65-B to

the Evidence Act regarding admissibility of electronic records which

reads thus,

Section 65-B: - Admissibility of electronic records.

Notwithstanding anything contained in this Act, any

information contained in an electronic record which is

printed on a paper, stored, recorded or copied in optical or

magnetic media produced by a computer shall be deemed to

be also a document, if the conditions mentioned in this

section are satisfied in relation to the information and

computer in question and shall be admissible in any

proceedings, without further proof or production of the

original, as evidence of any contents of the original or of any

fact stated therein of which direct evidence would be

admissible.

This amendment will help the prosecution and the defence where the

evidence produced is electronic in nature. The amendment has been done

to include "electronic record" in the connotation of the term "evidence".

The cumulative effect of section 65-B, is that certain computer outputs of

the original electronic record, are now made admissible as evidence

without proof or production of the original record. Thus, the matter on

computer printouts and floppy disks and compact discs becomes

admissible as evidence.

To prove the content of writing, recording or photograph, the

original writing, recording or photograph is required, when it comes to

electronic documents, the term "original" has an expansive meaning.

When someone creates a document on a computer hard drive, such data


on hard drive can be produced in court with the help of a monitor. Fed R.

Evid Ioar clarifies that if data are stored in a computer or similar device,

any printout or other output readable by sight, shown to reflect the data

accurately, is an original. Until and unless a genuine question is raised as

to the authenticity of a duplicate, duplicate is admissible to the same

extent as an original.

The best evidence rule is based on the difference between primary

and secondary evidence, secondary evidence is allowed only if there is a

strong reason to believe that the original or the primary evidence is

absent. Thus, while presenting evidence in the court, "original ' is

regarded as the best evidence though there may be circumstances when

duplicate may also be admissible. The digital boom has changed the

terminology or its impact to a greater length. Technically speaking, in

computer world, nothing exists in the name of "original" as the original

language of the computer is not words or sentences but a technical

expression of bits and bytes, of ones and zeroes translation into a readable

language, whether on the monitor or in the form of a printout is, strictly

speaking only "copy”.

In traditional crimes, a gun or a pistol, a letter or a weapon, once

seized, keeps the exhibit secured in one place and unless of a perishable

nature, shall remain so for months, may be for years. The work of the

investigator is thus simplified and limited to sealing the seized object.

Collection of digital evidence as well as its preservation, both are

challenging. Apart from careful manual handling, the job requires

knowledge on technical lines which is much more important than the

physical aspect. The investigators are also troubled by the use of digital

cover-ups and encryption techniques to either render the data useless or

totally inaccessible. The owner of the disk can conveniently claim to have

forgotten the password. Deletion of matter is another risk which is faced

by the investigators, it leaves the investigator helpless. The temporary

and volatile nature of postings on the net, the erratic nature of websites

and the short-lived online data often raises complex legal issues

regarding the rights and liabilities of parties in the law courts.


Time factor plays a crucial role in chasing the criminal in the virtual

world. The sooner the investigator gets in touch with the suspected place

of data, be it a website or a personal computer, the richer is the evidence

collected. To gather the digital evidence so that it is well appreciated by

the law courts and benefit the parties, one has to understand the

temperament of the internet. One more tactic which helps the defendant

to escape legal proceedings is to ask the internet community to mirror

(copy) its sites. Multiplicity of network of activities provides an option to

the defendant to have multiple sites spreading over multiple jurisdictions

and leaving the investigators guessing about the original site or to remain

within their limits due to jurisdictional problems thus, giving the

infringer a cause to be happy.

Preserving the digital evidence collection and storage of physical

evidence is the job of a layman with little effort required to complete the

work. The mammoth amount of data in a system, the perishable nature of

the evidence, its technicalities and to present it in the form of evidence in

law courts make the job of an investigator a complex one. Thus, to avoid

all this, it is advisable to take certain precautions beforehand to preserve

the data which is to be adduced as evidence.

Proper training of the investigator is required in maintaining the

identity and cogency of digital evidence. The technological boom has

disturbed the legal ambience; anonymity and ubiquity rule the Internet

environment. During its initial days, the internet was welcomed as an

engineering marvel though, today its popularity among the criminal

fraternity has send tremors across the legal world. The hardships of an

ancient legal society as confronted with the blues of the information

society are being surfaced and hard to quantify at the moment. A plethora

of legal issues weaken the power of law; the concept of legal frontiers

commonly known as "jurisdiction" is being transformed by the planet-

wide extension of human activity; privacy concerns mar the

investigatory efforts; evidential challenges are responsible for the

latency in cyber crime reporting and a unified effort to thwart the

onslaught is being carried on war footing.


IV Cyber security laws in other states

There are media reports that Russia and China are concluding a

cyber security treaty. The reported agreement would be the latest addition

to the increasingly complex landscape of international agreements

related to various aspects of cyber security—an area those in recent

months has also added an African Union Treaty and a NATO declaration.

The long-term effect of the bilateral and regional agreements is unclear:

they could pave the way for broader multilateral treaties or less formal

agreements, or they could entrench opposing views and thereby make

broad international agreements more difficult. The most likely outcome

may be somewhere in the middle. The details of the Russia-China treaty

are sketchy. Media reports indicate that the treaty would allow Russia and

China to develop “joint projects and conduct joint cyber security

operations” and to cooperate on “information security.” “Information

security” typically refers not just to the security of systems and networks,

which is what the United States and other countries mean in using the

term “cyber security,” but also work on regulation of information

content. For example, a Shanghai Cooperation Organization agreement

on “Cooperation in the Field of Information Security,” signed by China,

Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan in 2008,

lists as a major international information security threat the

“[d]issemination of information harmful to the socio-political and

socioeconomic systems, spiritual, moral and cultural environments of

other states.”

With the exceptions of the Shanghai Cooperation Organization

agreement and, most importantly, the Council of Europe Convention on

Cybercrime (or Budapest Convention), cyber security has been a rather

an area with limited number of bilateral agreements. But the new Russia-

China agreement will be the latest in an increasingly long list of recent

cyber security-related agreements. In June, the African Union

(hereinafter A.U.) adopted the “African Union Convention on Cyber

Security and Personal Data Protection.” The Convention addresses e-

commerce and personal data protection, but also cyber security and cyber


crime. It commits A.U. member states to develop national cyber security

policies and to adopt criminal legislation to address, for example, attacks

on computer systems and data breaches. It also, however, addresses

information content. The Convention requires states to adopt criminal

provisions regarding computerized production and dissemination of

child pornography. Other provisions—more controversial for U.S.

audiences accustomed to the scope of U.S. First Amendment

protections—require criminalization of computerized creation and

dissemination of “racist or xenophobic” ideas, discriminatory threats or

insults, and expressions of denial, approval, or justification of genocide

or crimes against humanity. In September, NATO endorsed an

“Enhanced Cyber Defence Policy,” building on its 2011 “Policy on

Cyber Defence.” In a declaration accompanying a meeting of heads of

state, NATO affirmed that “international law, including international

humanitarian law and the UN Charter, applies in cyberspace,” and

clarified that “a decision as to when Dept of Computer Science, a cyber

attack would lead to the invocation of article 5 would be taken by the

North Atlantic Council on a case-by-case basis.”

The long-term impact of the proliferation of regional agreements on

prospects for an overarching international cyber security treaty is not

entirely clear. On the one hand, development of a number of agreements

could help build a road towards a broad international consensus groups of

states could agree on the same positions seriatim, or if a series of

agreements come to differing conclusions, then at least bargaining

positions would be clearer for purposes of negotiating a broad

multilateral treaty. On the other hand, regional agreements could lock

states into divergent positions and render subsequent compromise on a

single international agreement more difficult. The recent agreements

may be heading in this direction by entrenching the Russian-Chinese

view of the importance of “information security” (as opposed to the U.S.-

European Union emphasis on “cyber security”) and establishing an A.U.

position in support of criminalizing expression that would violate the

U.S. First Amendment.


V Conclusion

After conducting the in-depth study of above mentioned topic, the it

can be concluded that, criminal law has widened its area, from territorial

aspects now it has entered into the virtual world which is borderless.

Tackling criminal activities had never been a child's play and this virtual

world has added more strain in supervision of these activities. Present

legal system although capable enough of handling such crimes,

sometimes finds it very difficult in countering such crimes due to various

reasons as mentioned in the article.

The study contends that an urgent need for framing any international

law regarding cyber crime is required otherwise the day is not far when

the criminals will rule the world and we will keep sitting and making

treaties and conventions for the safeguard of netizens. Need for a

legislation to regulate electronic activities is as important as the need of a

civilized society to have law. If cyberspace be left ungoverned, it will

lead us to disastrous end where cyberspace shall turn into veritable legal

Siberia where greed, gambling, pornography and sex will reign supreme.


THE PERVERSION OF PUBLIC

INTEREST LITIGATION*Kunika Khera

Abstract

Public Interest Litigation (hereinafter PIL) is one of the tools developed by the lawmakers to protect the interests of those who belong to the lower strata of the society and are unable to approach the court. Others can file petitions on their behalf and for the welfare of the general public. However, of late, the system of PIL has started to be misused and abused by the more elite sections. Instead of going to the judiciary with the intention of protecting public interest, many file cases for personal, political and economic considerations under the garb of protection of their fundamental rights. The process of litigation is being misused and time of the court is also uselessly wasted. The growing corruption and concentration of wealth has made the legal procedure lose its purpose and has become more perceptible to be used for ulterior motives. In the present paper, the increasing perversion of PIL are dealt in detail. Along with this, the role of judiciary in dealing with bogus and dubious petitions has been highlighted. A Public Interest Litigation Bill, 1997 was also introduced that sought to minimize the threat of groundless cases. Over these several years, the apex court has also gone on to fix parameters of admitting a PIL by the court. In a nation with great diversity and ingrained social stratification that has been part of its culture and society since its inception, it has become very difficult to bring in a method that would ensure justice to each and every individual. PIL has been developed as a solution to the same. Thus, it has become necessary to protect this institution in itself to make sure its advantages are actually availed by the community at large.

I Introduction

THE CONSTITUTION of India provides certain fundamental 1rights to each citizen of the country. These rights are believed to weave 'a

2pattern of guarantees on the basic structure of human rights'. They are

considered to be rudimentary and inalienable rights that cannot be

violated or infringed upon under ordinary circumstances. No individual

or organization, including the state can encroach the rights of others. In 3People's Union for Democratic Rights v. Union of India, the apex court

* Law student, Army Institute of Law, Mohali. 1 Part III of the Constitution of India.2 Maneka Gandhi v. Union of India, AIR 1978 SC 597.3 AIR 1982 SC 1473.

recognized the constitutional duty of the state to take relevant steps to

make sure that fundamental rights are observed and protected.

4 Articles 32 and 226 of the Constitution of India lay down remedies

for all the individuals to approach the Supreme Court of India and the

high courts in case of violation of their fundamental rights. Dr. Ambedkar

had observed that these two articles are the soul of the Constitution of

India. He believed that without these safeguards the whole Constitution 5would be a nullity. To champion the cause of protection of the said rights,

the judiciary has brought in a new tool called PIL. This development has 6

largely contributed to judicial activism in the nation. The main aim of

this technique has been to make sure that those socially, economically

and politically oppressed, who do not have resources to represent

themselves, get the opportunity to approach the court for relief. However,

the expansion of writ jurisdiction has brought many uncertainties and

reservations with it. It is said that the judiciary often crosses the

boundaries of judicial propriety to take over administration which is 7beyond their dominion. It must be recognized that this power must be

used with great attention and caution. Over the years, the judiciary has

also accepted that strict vigilance must be maintained to ensure the

process of court is not misused. The frivolous cases, in name of violation

of fundamental rights need to be filtered out to prevent the growing

perversion of the sanctity of the PIL.

II Public interest litigation in India

The idea of PIL was first pioneered in the cases of S.P. Gupta v. 8

Union of India. Elaborating on the concept, the seven-judge bench of the

4 Art. 32 and art. 226 give right to the citizens to approach the Supreme Court and the high court respectively, if their fundamental rights (and legal rights in the latter case) are infringed upon.5 Constitutional Assembly Debates, VIII, 350-353.6 Judicial Activism is a legal term that refers to decisions that are partially or wholly based on political and personal considerations.7 th Narender Kumar, Constitutional Law of India 478 (Allahabad Law Agency, 9 edn., 2015).8 Also known as the First Judges Transfer Case, AIR 1982 SC 149.

The Perversion of Public Interest Litigation | 25

Supreme Court observed that any bonade member of a public or social

group can invoke articles 32 and 226 for redressal of rights of persons,

who owing to certain disability, were unable to do so. PIL allows “public

spirited persons” to approach the courts for protection and enforcement

of rights of others, not for any personal motive but for the general public

interest.

9 Justice Krishna Iyer in Mumbai Kamgar Sabha v. Abdulbhai

observed that public interest is promoted by spacious construction of 10

locus standi keeping in line with the socio-economic circumstances of

the nation. Similarly, in various other cases, the ambit of PILs has been

expanded to include a plethora of issues to guarantee justice for all. The

apex court has explained that the PIL has been developed to render

complete justice to poorest of the poor, deprived, the illiterate, the urban

and rural unorganized sector, women, children, handicapped and the 11

other downtrodden.

The growth of PIL has led to protection of the most vulnerable

sections of the society. There is no parallel in the world that has proved to

be as effective as this tool. The current constitutional jurisprudence is

access to justice through “class action”, “public interest litigation” or 12

“representative proceedings”. PIL has brought in several positive

developments. The Supreme Court has brought in several orders, such as 14release of bonded leaders, ban on public smoking, guidelines for

rehabilitation for victims of rape and rules to prevent sexual harassment 16at workplaces.

The leniency and relaxation by the judiciary in PIL has led the courts

to play an adjudicatory as well as an investigative role which has led to

9 AIR 1976 SC 1455.10 Locus standi, in the traditional sense, means the right to move to the Courts for redressal.11 Guruvayur Devaswom Managing Committee v. C.K. Rajan, JT 2003 (7) SC 312.12 A.B.S.K. Sangh (Railway) v. Union of India, AIR 1976 SC 1455.13 Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549.14 Murli S. Deora v. Union of India, AIR 2002 SC 40.15 Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14.16 Vishakha v. State of Rajasthan, AIR 1997 SC 3011.


17misuse of PIL. In the past few years, there has been a rise in cases where

PILs have been filed only for some pecuniary or other selfish interests and

gains. The idea that was produced for the poor, has now become an

instrument in the hands of those with oblique motives to fulfil their

personal motives.

III The Supreme Court of India on the misuse of writ jurisdiction

of the Supreme Court and the high courts

The Supreme Court, from time to time, has acknowledged that

power of judicial activism must be controlled and used with utmost

caution. The rising degradation of the social litigations have alarmed the

judiciary of the risks and dangers that the same may pose to its role in 18serving justice. In State of Uttaranchal v. Balwant Singh Chaufal and

19A.K. Pandey v. State of West Bengal, the apex court held that PIL must

not be used for private gains or financial or political reasons or for any

other motive. It must only be for public injury or wrong.

It has been observed that the let up of rule of locus standi does not

automatically allow people to approach the court under the appearance of 20 PIL. Therefore, the courts often dismiss and decline to accept petitions,

if they feel the same is vexatious in nature.

The court has further put up in clear words, in Ayaanbkhan 21

Noorkhan Pathan v. State of Maharashtra, that the courts must ensure

that the process of judiciary must not be abused and “ordinary

meddlesome bystanders are not granted a visa”. These suits waste the

precious time of the judiciary and also create frustration in the minds of 22

sincere petitioners. The PIL must be used with great attention and 23

circumspection. A writ petitioner has to not only come with clean hands

17 Ram Niwas Jain v. Ministry of Home Affairs, available at: https://indiankanoon.org/doc/11513098/ (last visited on August 28, 2017).18 AIR 2010 SC 2550.19 AIR 2004 SC 280.20 Supra note 6.21 AIR 2013 SC 58. 22 Janata Dal v. H.S. Chaudhary, AIR 1993 SC 892; C.P.M.S. Samiti v. State of U.P., AIR 1990 SC 2060; Bhartiya Homeopathy College v. Students Council, AIR 1998 SC 1118.23 M/s. Holicow Pictures v P.C. Mishra, AIR 2008 SC 913.


24but also “with a clean heart, clean mind and clean objective.” There

must not be any ulterior motives. In T.N. Godavarman Thirumulpad v. 25Union of India, it was laid down that even if the case may be genuine; the

court has to dismiss it if the credentials and intentions of the petitioner are

in doubt. There is a plethora of similar cases that help us to infer the fact

that the judiciary has also acknowledged the threat of increasing number

of false PIL.

IV The Public Interest Litigation Bill, 1997

The United Front government introduced a bill in the parliament

concerning powers of PIL. The bill had proposed that an individual/s who

were approaching the courts through a PIL must make a deposit of rupees

one lakh, in case of the Supreme Court and rupees. 50,000/- in case of a

high court. This amount would be refunded if the decision was in favour

of the petitioner and the same would be confiscated if the petition was

dismissed.The provisions were confined to persons who had direct

personal interest, not for those moving to the court on behalf of a 'poor

person' whose income was not beyond rupees 6000/- annually. Apart

from this, the draft provided that PILs must be restricted only to cases of

legal injury to a definite person or specific set of persons. Litigation

against 'purely executive action' of the administration was also excluded.

26 Labelled as a 'black bill', the draft was widely criticised for

restricting the reach of legal justice. It choked on the court's power of

judicial review which has been held to be a basic structure of the 27constitution. The fact that executive actions are excluded from the

purview of PILs goes on to show the intention of the government in

bringing this legislation.

However, the bill in some ways was to important prevent frivolous

PILs. Putting a financial risk on approaching the court would prevent

24 Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) ISCC 590.25 AIR 2006 SC 1774.26 Supra note 5.27 Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.


useless and wrongful cases. Also since the PIL litigations are given more

importance, the general cases are left pending for decades.

The draft was not passed due to criticism received. Though the bill

had many loopholes and was introduced with an oblique intention, a bill

on similar lines may be created specifically to restrict unnecessary and

malade petitions.

V The abuse of articles 32 and 226 of the Constitution of India

It has been seen in several petitions the plaintiffs often take up the

contention that their fundamental rights have been infringed upon under

articles 32 and 226 of the Constitution of India, even when the same is

untrue and an alternative remedy is available in other legislations. Apart

from this, writ petitions have also been filed on irrelevant and useless

grounds. It has been extremely important for the judges to become very

vigilant in deciding whether a case is genuine or not and the courts have

many denied petitions in pursuance of this.

The Supreme Court, in Pravasi Bhalai Sanghathan v. Union of 28 India, dismissed a petition regarding menace of hate speeches during

election time, since the Indian Penal Code provided for sufficient remedy. 29

In Ahmedabad Women Action Group v. Union of India, the court

rejected petitions that questioned on certain personal laws on the ground

that the same included matters of the state legislations. Petition 30demanding review of earlier decisions was also rejected. The criminal

matters have also been excluded from the writ jurisdiction wherein the

case is filed by a stranger and not the accused. In the present case, a leader

of a political party had filed a PIL stating he had a sincere interest in future 31

of the convicts. The plea was dismissed. The case of Vinod Kumar v. 32State of Uttar Pradesh saw a petition by an advocate against transfer of

cases to other courts, including one of his own. Similarly, the apex court,

28AIR 2014 SC 1591.29AIR 1997 SC 3614.30Krishna Swami v. Union of India, AIR 1993 SC 1407.31Simranjit Singh Mann v. Union of India, AIR 2003 SC 892.32AIR 2001 SC 1739.


33in State of Uttaranchal v. Balwant Singh Chaufal, had sentenced the

respondent to pay rupees. one lakh for filing an unimportant petition. The

respondent had challenged the appointment of the Advocate General as

his age was beyond the prescribed limit. The law regarding the same had

already been decided and it was held to be a waste of the court's time. In 34Sanjiv Choudhary v. State of Punjab, the petition was dismissed on the

ground that it had been filed to settle personal scores. The Madhya 35Pradesh High Court laid down that the judiciary must deal with the

growing perversion of PIL with an iron hand. If the current trends are

continued, this tool would become a weapon in the hand of dishonest

persons for their personal interests.

VI Guidelines for filing PIL

In furtherance of filtering out unauthentic petitions that would waste

the valuable time of the courts, the judges have set down guidelines in

certain cases. Some principles were laid in G.D. Managing Committee v. 36

C.K. Rajan. These are mentioned briefly below:

1. The courts can admit petitions which are filed by persons

who have genuine interest in the welfare of the affected

people, who are underprivileged and are not able to

approach the court. The judiciary is constitutionally

bound to protect fundamental rights of these poor and

destitute people.

2. The court may treat letters and telegrams as petitions in

cases involving matters of public importance, protection

of fundamental rights in par with constitutional duties

and functions of the government. Procedural laws may be

relaxed in such cases.

3. Judicious and fair trial shall be provided to all where

injustice is meted out a large people of India. Articles 14 33 Supra note 15.34 (2015) 7 SCC 167.35 Ramveer v. Union of India, available at: https://indiankanoon.org/doc/132183557/ (last visited on August 25, 2017).36 AIR 2004 SC 149, at 572-573.


and 21 of the Constitution of India and various

international resolutions on human rights endorse the

same.

4. The rule of locus standi is also relaxed, so as to make

available the legal machinery to the poor and deprived

who cannot go to the courts on their own when their rights

are violated. Now, other people on their behalf may

knock the doors of the judiciary.

5. When the violation of any constitutional rights of the

disadvantaged is prima facie, the court may not allow the

state to question the maintainability of the suit.

3 76. Whether principle of res judicata and other

corresponding ones would apply or not depends on facts

and circumstances of each case, even though procedural

laws apply on all PIL cases uniformly.

7. Disputes between two rival groups involving private law

are beyond the purview of PIL and are not to be agitated

as public interest litigation.

8. In cases where the petitioner may have moved to the court

for his or her private interests, the court may decide to

admit the matter in pursuance of public interest and

require investigation into the subject of litigation.

9. In certain circumstances, the court can appoint

commissions and committees for investigating into the

case. Such a committee may be asked to take over the

direct administration of the public organization. The

court would have to make sure that it must not transgress

into any policy. It must take care not to go beyond its

jurisdiction in protecting the rights of others.

37 Res judicata refers to cases that are already decided and cannot be pursued on by the same parties.


10. The courts should not ordinarily step out of the realms of

judicial review. The high courts can pass orders to

provide justice to the parties; however, it does not have

the same power as provided in article 142 of the

Constitution of India.

11. The high courts, ordinarily, cannot entertain PIL that

question the legality or validity of statutory regulations.

Relying on the above case, the apex court in Santosh Sood v. 38

Gajendra Singh, has held that a civil suit pending means that the high

court cannot ordinarily entertain a PIL on the same matter. A PIL must not 39hinder the due process of law of the court. The Contempt of Courts Act

would apply in matters where an abuse of procedure of court was taken on

by any of the parties. Similarly, in Balco Employees' Union (Regd.) v. 40

Union of India, the Supreme Court has fixed standards that are necessary

for admission of PIL.

1. The petition involves a large number of people, and must not be

individualistic.

2. The affected people are part of the underprivileged section of

society.

3. Judicial law making is important to prevent exploitation and provide

justice.

4. Judicial intervention is required to protect the sacred institutions of

democracy.

5. Administrative decisions have resulted in being harmful to the

resources.

These parameters are merely evocative and not exhaustive.

38 AIR 2010 SC 593.39 The Contempt of Courts Act, 1971.40 AIR 2002 SC 350.


VII Conclusion

The tool of PIL has seen degradation in standards due to various

factors. Increased number of spurious cases filed, cases filed for selfish

gains etc. contribute to this. PIL is basic part of the open democracy in

India. Therefore, instead of wiping out the whole system, an alternative

solution must be developed to deal with the issue. Soli Sorabji, the former

Attorney General of India, mentioned three rules for regulating misuse of 41PIL:

1. Dismiss petitions at the beginning and in certain cases, with

exemplary costs.

2. Important social legislations that are delayed unnecessarily sue to

irrelevant PIL must be excluded.

3. Undertaking or a deposit must be taken from petitioners before

admitting a PIL in the court.

Before admitting any petition, the court must identify the parties and

make sure the grounds on which the case is filed are relevant and

authentic. There must a genuine legal injury or wrong suffered. Flushing

out of irrelevant and frivolous suits must be the priority of the courts at the

moment. The courts must also make rules for bifurcation between PIL on 42

the basis of civil and criminal matters for convenience in the process.

All attempts to misuse the PIL which is sometimes fraught with danger,

have to be thwarted. Courts have to be cautious and circumspect in

entertaining PIL-reason being that instances of vindicating personal

cause or feeding fat the grudge as also for personal gain or to ventilate the 43

cause of others having oblique motives, may be multiplied. Judiciary

must be vigilant and careful in admitting petitions. The same may lead to

increase in instances of spiteful individual causes and grudges disguised

as a public cause.

41 Shinsy P.S., “Abuse of Public Interest Litigation”, available at: http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html (last visited on October 29, 2017).42 Supra note 36.43 Nand Kishore Nautiyal v. Tehri Hydro Development, 2000 (3) AWC 2024.44 Tarak Singh v. Jyoti Basu, 2005 (1) SCC 201.


However, at the same time, as J. S. Verma J, the former Chief Justice

of India, had adequately observed that the judiciary must sometimes go

beyond its jurisdiction to undo excesses of the executive. However, the

judiciary would have to shrink back to its place, once the executive is 44brought into place. Thus, the judiciary is to also maintain itself within its

realms and is not provided with absolute discretion over its powers.

A favourable balance is required to be maintained in pursuance of

providing justice to all and in protecting the sanctity of legal proceedings.

The threat to efficiency of the judiciary must be curtailed through efforts

from the court as well as petitioners, who must act as active and vigilant

citizens and not use the right provided to them so sparingly.


STUDY ON CENSORSHIP IN INDIA WITH SPECIAL

REFERENCE TO RELIGION AND OBSCENITY*Niranjan E V

**Vishaka Nikkam

Abstract

The extent of article 19(1)(a) of the Constitution of India is being widely discussed upon, this gives the right to express one's own opinions verbally, in writing, by printing or any other means. We come across various social and religious groups that start protesting and agitating on motion pictures that curb their ideology. However, filmmaker's choices have been curbed through pre-censorship. The censor board in India censors films on grounds of nudity, violence and any other matters that are considered to be politically, legally and morally offensive. This paper ventures into the concept of films being banned on grounds of religious beliefs, traditions and cultures. These factors are considered to ruin communal harmony and peace in the society. This paper discusses the concept of cinema and its legal framework in India along with censorship on the basis of religion and obscenity in the light of the fundamental right of freedom of speech and expression guaranteed to every citizen. More importantly, the misuse of powers of the censor board in this context is also looked into along with the recent incidents.

I Introduction

THE CONSTITUTION of India guarantees right to freedom of

speech and expression under article 19 (1)(a) as a fundamental right.

Freedom is the condition of setting ourselves liberal and to be free. The

Preamble of the Constitution of India also promotes the concept of 1'liberty', which includes liberty of thoughts, beliefs and expressions.

Further, clause (2) of article 19 focuses on the reasonable restrictions on

the freedom of speech and expression. It says that the right to freedom of

speech and expression shall not be exercised by the people in such a way

that it affects the sovereignty and integrity of our country including the

security of the state. Moreover, fraternity, public order, decency and

morality or with regard to contempt of court, defamation or incitement to

an offence shall also be taken into consideration before exercising the * rd3 year student, B.A. LL.B (Hons.), School of Law, CHRIST (Deemed University), Bangalore.** rd3 year student, B.A. LL.B (Hons.), School of Law, CHRIST (Deemed University), Bangalore.1 The Constitution of India, art. 19(2).

fundamental right to freedom of speech and expression under 19(1)(a), is

all that is envisaged under article 19(2). Therefore, the freedom that is

guaranteed in article 19(1)(a) is not absolute because the state has the

right to put forth reasonable restrictions for the citizens to not go beyond

certain ambits. These restrictions are placed for public good and peace in

the society. Thus, the restrictions must be 'reasonable'. Relating this to the

focus issue, cinema or motion pictures is the art of colorful moving 2images. Freedom of speech is interpreted to be exercised not only by

means of speech but also through various means such as music, art, 3

literary works, etc. These days, cinema is regarded as one of the

important platforms to express one's thoughts and ideas. Cinema acts as

an important source of showcasing ideas and values of the dynamic

world.

In a county like India, religion majorly affects the social structure

and interaction among people. Showcasing religious beliefs and ideas in

motion pictures have recently created various social traumas, disturbing

peace. This happens only when people find the story line to be disturbing

their religious thoughts and beliefs. Extent and right of the filmmaker in

exercising his free speech is the matter of question here.

II Legal framework and censorship

Under article 19(1)(a) of the Constitution of India, the means of

communication to exercise the right is not explicitly mentioned. The

Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 4 1983 are the legal frameworks governing censorship in India. The 1952

Act, under section 3, gives powers to the central government to create a

board called the Central Board of Film Certification (hereinafter 5

mentioned as censor board). The board consists of non-official members

2 Gabe Moura, “What is Cinema, Elements of Cinema”, available at: www.elementsofcinema.com/cinema/definition-and-brief-history (last visited on June 13, 2017).3 Dr. S.R.Myneni, Media Law - With Right to Information Act 40 (Asia Law House,

ndHyderabad, 2 edn., 2013).4 Ibid. 5 Central Board of Film Certification, India, available at: https://www.cbfcindia.gov.in/main/14/about-us.html> (last visited on June 20, 2017).


and a chairman, appointed by central government and functions with

headquarters at Mumbai. There are nine regional offices in the country 6that are assisted in the examination of films by advisory panels. The

members of the panels are nominated by central government by drawing 7

people from different walks of life for a period of two years. Thus, only

after the said board has certified films, can they be publicly exhibited.

The Act vests powers to the censor board to censor any motion

picture on the grounds mentioned under section 5(B) of the Act and

according to the 'reasonable restrictions' placed under article 19(1)(a) of

the Constitution. But however, the powers vested in the hands of the

censor board are widely being misused. It is seen that the restrictions

placed by the censor board are beyond reasonability, thus challenging the

scope of freedom of speech and expression of the filmmaker.

The Cinematograph (Certification) Rules, 1983 lays down the

procedure that a producer must go through to get his film certified. It

explicitly specifies the steps to be followed and the fees to be remitted for

purpose of the same. The film or video film and other materials specified

in rule 2.1 have to be submitted to the regional officer of the concerned

regional centre. The regional officer will then form an Examining

Committee to view the film on the basis of the submitted materials.

Under rule 22, this Examining Committee, in the case of a short film,

will consist of an officer of the CBFC and one advisory panel member.

Either of these panel members shall be a woman, and in the case of a long

film or feature film, four of the two persons shall be women. After the film

has been previewed, the CBFC has to ensure that each member gives a

report in writing about his recommendations about the deletions and or 8

modifications and the certificate the film should be given. This report is

then given to the chairperson who will delegate the regional officer to

initiate further procedures regarding the same.

6 Supra note 5. 7 Ibid. 8 Central Board of Film Certification, India, available at: https://www.cbfcindia.gov.in/main/14/about-us.html (last visited on June 30, 2017).

Study on Censorship in India with special Reference to Religion and Obscenity | 37

If the chairperson on his discretion or on the request of the applicant so

feels, she may also refer the film to Revising Committee under rule 24.

The Revising Committee will comprise of chairperson, in his absence, a

board member and not more than nine individuals, selected either from

the CBFC advisory panel, provided none of them was on the Examining

Committee shaped before. The Revising Committee will see the same

film print shown to the Examining Committee with no progressions, and

every member will be required to record his decision before leaving the

theater. If the chairperson is not in agreement with the majority view, she 9

may direct another Revising Committee to see the film. The maximum

members in the Revising Committee should be five among whom no less

than two people might be women. The number of women individuals

should not be short of what one-portion of the aggregate individuals from

a panel constituted under sub-rule (2). After the applicant in informed

about the choice of the board, he will erase any bits (if so coordinated)

and submit them to the regional officer, alongside one duplicate of the

film as certified. The matter can go on for an appeal under section 5C of

the 1952 Act. The appeal goes to the Film Certification Appellate

Tribunal (FCAT) that is headed by a retired judge, who is the chairperson,

and not more than four members. The FCAT should hear both the

applicant and the CBFC before it pronounces its judgment.

III Article 19(1)(a) and censorship

While we discuss the demand for censorship in India, we also need

to put light to the constitutional provisions, which are directly hit by such

demand for censorship. Article 19 of the Constitution of India grants and

guarantees to the Indian citizens, protection of rights regarding the

freedom of speech and expression. While article 19(1) (g) grants citizens

the right to practice any profession or to carry out any occupation, trade or

business. The Constitution of India has laid down on principles of liberal

democracy, which demands such a right to raise out one's opinion and

views with a reasonable restriction.

9 Supra note 5.


It is seen that most often, the reason cited by almost all the governments

on banning of certain movies was that the movie is 'blasphemous and

offensive' and might hurt the 'emotions' of the people of the minority

community, and hence, in turn, disturb the 'peace and tranquility of the

state'. And this balance has been elaborated in the form of restrictions to

freedom of expression under article 19 (2). These have to do with the

sovereignty and integrity of India, the security of the state, friendly

relations with foreign states, public order, decency or morality or in

relation to contempt of court, defamation or incitement to an offence. In

this sense, there will be reasonable restrictions to free speech which affect

the country's integrity and disturbs public order, decency and so on and so

forth. The ban on a film is legally justifiable only on these seven grounds,

and none else.

Films while providing entertainment, also provide education,

develop a national character, and mirror the society at large. However

films often become the target of public ire and of censorship. The

problem here is that the examining committee tends to see and judge a

film on the basis of a song or a dialogue in a film and not the whole. They

tend to look at a dialogue and not the context in which it is placed. The

Supreme Court of India has observed that pre-censorship is nonetheless

an aspect of censorship in itself, which holds the same idea in quality to

the material as censorship that takes place after the movie has had a run in

the theatres. There is not a big difference between the two, except the fact

that pre-censorship is a stage where the state imposes regulations 10

between the individual and his freedom to produce the movie.

IV Censorship vis-a-vis religion and obscenity

It is surprising to find that the largest democratic country in the world

curtails the right to freedom of speech and expression. The Constitution

explicitly says that the country is secular, republic and democratic with

freedom of expression as a fundamental right. Alongside, the

10 Livelaw News Network, India, available at: http://www.livelaw.in/sc-notice-centre-cbfc-palekar-plea-pre-censorship-films/ (last visited on June 30, 2017).


Constitution also prohibits any act that offends religious sentiments.

Thus, it tangles a filmmaker or an artist to go beyond the boundaries,

specifically in religious, sexual and moral areas. The government of India

banned a BBC documentary about rape, Leslee Udwin's 'India's daughter'

on the grounds of sexual violence against women hurting moral feelings

of the society at large. All that was required was for the Delhi police to tell

a magistrate's court that the film "may lead to widespread public outcry 11and serious law and order problems.”

A few recent controversies over Sanjay Leela Bhansali's Padmavati

and the Prakash Jha production Lipstick Under My Burkha, which have

ignited the debate between the liberals and the conservatives, between

the custodians of Indian culture and the urban intelligentsia. But in the

cacophony of arguments and counter-arguments, no one has referred to

the blueprint of the young nation-the Constitution of India.

Those movies which have been censored claiming that they hurt the

religious sentiments of the people include the movie 'the Da Vinci Code'

(2006) that was banned in five states in India as it hurt the sentiments of

the Christian community. The movie, and the book by the same title,

questions the Christian belief that Jesus never committed the original sin.

According to the book and the movie, Jesus had married Mary

Magdalene and had a daughter from her. Although the book ('Da Vinci

Code') is freely available in most of India except in Nagaland, the film

adaptation of the same ran into rough waters. Likewise, 'Sins' (2005)

dealt with the theme of a Keralite Roman Catholic priest who falls in

love. He has to struggle with his lust and sexuality. But the Roman

Catholic Church claimed that the movie depicted the Church and the

priests in a questionable manner. It is banned in Kerala.

An important decision this regard is Rangarajan v. P. Jagjivan 12Ram. In an appeal before the Supreme Court, the decision of the Madras

11 "Independent", available at: http://www.independent.co.uk/news/world/asia/the-saffron-censorship-that-governs-india why-national-pride-and-religious-sentiment-trump-freedom-10137186.html (last visited on July 8, 2017).12 (1989) 2 SCC 574.


High Court was challenged for revoking the U certificate issued to Tamil

film called Ore Oru Gramathile (in one village) as the film criticized the

reservation policy of the Tamil Nadu Government. It was held that the

reaction to the film in Tamil Nadu is bound to be volatile. But the

Supreme Court of India reversed this decision while upholding and

giving prominence to the freedom of speech and expression.

Recently, the Central Board of Film Certification refused to certify

the public screening of a Malayalam film, 'Ka Bodyscapes' by a New

York based filmmaker, Jayan Cherian on the grounds of vulgar and

o ffens ive scenes . The reg iona l o fficer o f the CBFC in 13

Thiruvananthapuram wrote that the revising committee felt that the

entire content of the Malayalam feature film 'Ka Bodyscapes' is

portraying Hindu gods in a poor manner, thus ridiculing, insulting and

humiliating the Hindu religion. Derogatory words are used against

women and also pictures scenes which throw positive light on

homosexual relationships. The Hindu God Hanuman is shown to come in

books titled, 'I am Gay' and other homosexual books. The film offends

human sensibilities by being vulgar and obscene.

V Case analysis

In the case of Phantom Films Pvt. Ltd. and Anr v. The Central Board 14 15

of Certication, a writ under article 226 was filed in the High Court of

Bombay with regard to directing the respondent to issue in favour of the

petitioners a certificate styles as 'A' in respect of the bollywood movie

'Udta Punjab' which was subjected to censorship. Freedom of speech 16

under article 19(1) has been discussed and the case was heard on merits.

The film in this case is one of fiction, wherein there are depictions of the

problems faced by the people of the state of Punjab on account of drug

addiction. Once the film was ready, the petitioner applied to respondent

13 The Hindu, Kochi, available at: http://wwiw.thehindu.com/news/national/kerala/Ka-Bodyscapes-refused-certifcation/article14509792.ece (last visited on February 20, 2017).14 2016 (4) ARB 593.�15 Supra note 1 at art. 226.16 Id. at art. 19(1).


no. 1 for certification of the film. The respondent after examining the film

had conveyed that it had referred the subject film to Revising Committee,

no copy of reports or remarks was given in regard to the same. The

Committee was supposed to submit its report within three days but its

decision was not conveyed. The Revising Committee and the board came

to a decision that the film is not suitable for unrestricted public exhibition

but may be suitable for public exhibition restricted to adults provided that

the excision or modifications are carried out. It was the contention of the

counsel for the petitioners that the producer of the film had incurred so

much of expenditure and made a huge investment in the films and

therefore expected the statutory authorities to act reasonably. Among

other things the petitioners had an issue also because reasons for

requisitions of various modifications were not stated. The subject of the

film should be dealt with by the producer or maker of such film, this is the 17

right guaranteed under article 19(1) (a); cuts in the film should not be

given merely because the board holds an opinion that those parts are

unnecessary or not required in the story of the film. The film was

supposed to cater to an adult audience and hence they had applied for 'A'

certificate. The deletions asked for would destroy the theme of the film. It

was also held that when the order passed by the board runs counter to the

objectives of film certification completely and negates the constitutional

guarantee then courts can interfere.

The court after looking into the script has come to a conclusion that

nothing therein will affect the sovereignty and integrity of India.

Therefore an 'A' certificate was issued. The film deals with drug

addiction, which is a socially and morally relevant subject. The

respondents, as per statutory authority constituted under The 18Cinematograph Act, 1952 were empowered to certify and examine

cinematograph films prior to their exhibition. The important matter here

was that the film was a fiction, and upon displaying a disclaimer to the

effect that there should not be any specific issue as to censor the part

17 Supra note 1 at art. 19(1) (a).18 The Cinematograph Act, 1952 (Act 37 of 1957).


mentioning it to be Punjab. Such extreme form of censorship would

restrict creativity and flow of thoughts and social issues in the society.

The court also laid emphasis on the fact that we are operating in a

democratic country and therefore no one is restricted from expressing

himself or herself only because they differ in their thoughts.

19 In 2004, a documentary film, 'Final Solution' that focuses on

religious conflicts between Hindus and Muslims, was banned. The 2002

clashes in Gujarat were portrayed in the movie. The censor board justified

it saying that the film was highly proactive and may trigger off unrest and

communal violence. The ban was later lifted after a series of campaigns. 20

Similarly, in the State of Tamil Nadu, Kamal Hassan's Vishwaroopam, a

2013 Tamil film was banned on the grounds of religious tension between

Hindus and Muslims. Later, the ban was lifted after certain scenes were

deleted.

21 In A.K. Adarsh v. Union of India the court held that license cannot

be granted merely on the basis that a previous film containing more or

similar obscene or pornographic scenes had been granted a certificate. It

said that the particular film needs to be viewed and only if it is in

conformity with the law, then alone should it be entitled to a certificate by

the board. In such cases the petitioner will not be allowed to avail article 22

14. In this case the court also iterated that sex and obscenity are not

always synonymous and it is wrong to classify sex as essentially obscene

or even indecent or immoral. It should be our concern, however to

prevent the use of sex designed to play a commercial role by making its

own appeal. This draws in the censor's scissors. The points laid down in

this case reflect a liberal thinking which is apt for our society. Sex is a

natural phenomenon and no film should be banned merely because it

involves such scenes.

19 "Freedom of Expression and the Politics of Art Films of Anand Patwardhan", available at: www.Patwardhan.com (last visited on August 8, 2017).20 PTI “Ban on Kamal Haasan's “Vishwaroopam” lifted in Tamil Nadu” The Economic Times, Feb. 03, 2013.21 AIR 1990 AP 100.22 Supra note 1 at art. 14


A few movies are censored on the ground of obscenity, illustrations

of such movies include- Mira Nair's 'Kama Sutra-A Tale of Love' (1996)

which dealt with a story of four lovers in 16th century India. Though

Kama Sutra, the book is easily available in India, the censor board still 23

found the movie too explicit, unethical and immoral. Likewise, Gandu

(2010), a Bengali film that was a rap musical, created enough buzz for its

scenes of oral sex and nudity so as to be qualified as defying Indian

sensibility. The censor board banned its screening. Even some foreign

films have been banned in India. Although the book, 'Fifty Shades of

Grey' is a popular book in India, the movie, based on it, was censored for

its sexual theme and nude scenes. Of course, the most famous movie to

invite criticism on the ground of obscenity was Shekhar Kapur's The

'Bandit Queen' (1994) was based on the life of Phoolan Devi, the dreaded

dacoit of U. P., the movie included a front nude scene, rape scenes and a

barrage of explicit words. The censor board granted an 'A' or adult

category certificate to the movie and permitted its screening. But the

grant of 'A' grade certificate and the possibility of its screening was

challenged before the Delhi High Court. The controversy finally reached

the Hon'ble Supreme Court in the case of Bobby Art International v. Om 24

Pal Singh Hoon and Others.

25 In Shankar v. State of Tamil Nadu, the Supreme Court observed

that, when promotion of art and culture is the primary underlying object,

how can obscenity, cruelty and many such wicked things be depicted and

shown in such blown-up and magnified manner leaving an impression

that the film is meant only to depict such things. It is here that the censor

board should step in firmly and insist that the film being released has a

message meant to improve the values of life. By exhibiting scenes of

violence, sex, rape, bootlegging and drug trafficking etc. in such a

manner or manners which have the propensities of disturbing or

corrupting the minds of some viewers like children particularly of those

23 "Gandu Finds Its Groove" Times of India. Feb 7, 2011.24 AIR 1996 SC 1846.25 (1994) 4 SCC 478.


who are weak minded, wayward, indisciplined, frustrated and likewise,

who are very likely to become wicked and evil-minded and ultimately

end up as criminals indulging in organized crime, the avowed objects gets

frustrated. The films should be educative value and then only they can

play an important role in sub serving the interests of the society. No

doubt, entertainment is one of the important underlying objects but it is

mainly meant to make the viewers mentally relax and enjoy and not to

render them heavy-hearted, sensually aroused and mentally disturbed

which may lead them to indulge in frivolities, perversions and dangerous

addictions, which ultimately are likely to pave the way to end up

themselves as criminals.

VI Analysis

As we look into the implications of censorship, it can be found that

censorship not only affects freedom of speech and religion but also the

freedom to practice or profess any trade or occupation, that is also 26

guaranteed as a fundamental right under article 19(1)(g). Banning of

films eventually affects the essential aspects of film business. The 27reasonable restrictions placed under article 19(2) are for the public at

large. But it is important to note that this affects an individual's personal

rights. If a film causes religious tensions and affects emotions of a

particular group of people in the society, they indulge in activities and

protests that are violent in nature, disrupting public peace and order. So

there is no ground in pointing that the movie per se is causing violence,

but rather the mentality and the way people perceive and interpret it to be. 28

Moreover, the grounds mentioned under article 19(2) are sometimes

manipulated and interpreted in the widest sense, which is resulting in the

ban of films on slightest opportunities. India being a diverse country

cannot be always placed as a reason to put forth restrictions. Over time,

these restrictions have not seen any way to development. Moreover, films

or motion pictures are a way of expressing ideas, thoughts, information

26 Supra note 1 at art. 19 (1)(g).27 Supra note 1 at art. 19 (2).28 Ibid.


and creativity and by restricting this we are depriving not only the people

of India from developing, learning and 'right to information', but also film

makers of their free flow of ideas and creativity.

The legislation and rules that govern cinematography in India have

been formed decades ago, reflecting the kind of society we once lived in,

which was not open to new ideas and was backwards. Therefore, there is

an urgent need to reform the censor board and their rules. Though various

committees have been set up by the central government to look into this

issue, it is noted that very little have been done to implement the

suggestions brought forward by the committees. An Expert Committee

was also set up which suggested the government to take any reforms with

regard to the censor board. However, no steps have been taken on

reformation steps have been taken on the same.

Decency and morality are vague terms, what might be the standards

for conforming to be decent and moral to one sect of the society might not

be the same to another sect which might think it to be outrageous. The

meaning attached to these terms change with time, social construct and

culture. There is a difference between obscenity and vulgarity, the latter

would arise a feeling of disgust in people. When films are banned

claiming them to be obscene other kinds of vulgar motion pictures are

produced, these include porn. In such production women are ill treated

and the consumption of such motion pictures is also bad for the society.

We need to look at censorship from the point of view of producers of

motion pictures, particularly pre-censorship, which is done before

granting the certificate. The producers would have anticipated a 'U/A'

certificate for a particular film on which hard work of a group of

professionals would have gone into, but the board in such cases would

agree to grant that certificate only if the cuts prescribed by them have

been met with. The problem with giving effect to such cuts in films would

be that the storyline or the flow of the film would be interrupted.


VII Recommendations

Freedom of speech and expression has evolved over the years under

different perspectives. The censor board issues certificate to films on the

basis of who can view the film. So, when the board issues an 'A' or a 'U/A',

it obviously included all adults under the ambit of the viewers, who are

capable of comprehending things for themselves. Anticipation and

presumption of the consequences shall not be the grounds of banning the

film. As motion pictures relate to every man's practical life, the law must

be in consonance with it. Therefore, there must be a reformation in the

existing laws per se. With freedom comes responsibility, which should be

vested in every citizen of India. Ratings for mature viewers are

appreciable rather than just cutting down scenes completely. The process

of censorship shall take place in light of the period and the people

depicted in that film, rather than seeing in a contemporary point of view.

The function of the censor board shall be limited, and so that of the

chairman eventually, to be only advisory in nature.

VIII Conclusion

Censorship's basic aim is to maintain law and order, public peace

and harmony in the society. But using this reason henceforth is simply

ridiculous and arbitrary. We must understand that every person in India

should be given an option to see and form an opinion of things for

themselves; no one should be able to feed something into the minds of

people. Though a huge population is not well educated, India as a country

is developing and this development has been brought forth in various

fields through creativity and ideas, therefore this form of creativity and

free flow of thoughts should not be restricted. It is always the people with

prejudices and stereotypical views that indulge in misleading other

people in order to serve their own needs. As discussed previously, the

activities of the censor board are also highly manipulative and debatable.

Even judicial decisions on baraing films have not created any end point to

the issue but have only given rise to similar issues. Therefore, a

permanent solution is needed. The power of the state on the censorship


issues must be limited and must satisfy the centre with reasoning as to

why a ban on that particular film is needed and why they were left with no

other choice except to censor the film. The power to decide on restricting

free speech must be made in conformity with reasonable standards. Only

when there is an absolute necessity to prevent direct harm on the society

at large, should the restrictions play their role. Therefore, it can be

concluded that in a democratic country like India, freedom of speech and

expression on films can be restricted only when there is an extreme

anticipation of direct harm to the people. However, at the same time, a

filmmaker has to know that the peace and harmony among the people

should not be disturbed in the process of expressing his views and

expression and also that no film maker would produce a film which would

bear such grave consequences. On the other side, the restrictions placed

must not harm any individual's basic human right on his views on the

society. Screening of films and documentaries is definitely a challenging

task, as it impacts people's thoughts and induces various contemplations.

The censor board should work prudently and effectively in understanding

the design of a film, the intentions and the impacts, and screen the same

accordingly rather than making a wider sense of the restrictions placed,

eventually curtailing mere freedom of speech and expression. The issue

has to be looked into and solved in a 'need of the hour' approach. Effective

way forwards must indeed be taken up by respective authorities, which

highlights towards bringing on amendments to the legislation and rules

governing film certification.


THE RIGHT TO EDUCATION:

A CASE OF JUDICIAL ACTIVISM

Pritam Banerjee*

Rajat Halder**

Abstract

Education is one of the basic needs of the human society in this modern world. Rate of education is an index to judge the rate of development of a nation. Education is now widely valued not only for its intrinsic value in enriching the lives of individuals but also for its functional value in the development of the human capital of a nation. Gender, race, caste, and language differences were deep rooted into the Indian society. They have all contributed so much in the leg pulling of Indian society as a whole that it resulted for its downfall in terms of education, economy & development. In a country like India with such huge population the rate of education is always a major concern. In the early days of independence, education as a basic need was recognized under the directive principles of state policy in the Constitution of India. However, later on through judicial activism the right based approach was given to education by including it within the scope and ambit of article 21A. Moreover, in the year 2009, Right to Education Act was enacted and through this specific law educational right for all citizens of India was secured. This paper will define the right and will give an idea about its development and recognition under the Indian legal system.

I Introduction

EDUCATION AND its spreading rate can be traced as a sole

criterion for judging a nation's development. Education in India is

provided by the public sector as well as the private sector, with control

and funding coming from three levels i.e. central, state, and local. The

Indian government lays emphasis on primary education up to the age of

fourteen years, referred to as elementary education in India through an

unambiguous moto of "all for knowledge, and knowledge for all.”

Holistic view of education has been interpreted in the National

Curriculum Framework, 2005, with implications for a systemic revamp

of the entire content and process of education with significant

implications for curriculum, teacher education, educational planning and

management. The Right of Children to Free and Compulsory Education

* th 5 year student, B.A. LL.B, S.K.Acharya Institute of Law, Kalyani University, W.B.** th5 year student, B.A. LL.B, S.K.Acharya Institute of Law, Kalyani University, W.B.

Act or Right to Education Act is the guiding Indian legislation enacted by

the Parliament of India, which describes the modalities of the importance

of free and compulsory education for children between six and fourteen

year age group.

II International perspective

Education in the United States is provided by both, public and

private schools. Public education is universally available, with control

and funding comes from state, local, and federal governments. Public

school curricula, funding, teaching, employment, and other policies are

decided through local elected school boards with jurisdiction over school

districts. State governments have control over educational standards and

standardized tests for public school systems. Governments supported,

free public schools for all, started being established after the American th 1

Revolution, and expanded in the 19 century. The Constitution of India

guarantees human rights, but not the right to education. Education is

compulsory over an age range beginning somewhere between ages five to

eight and ending somewhere between ages sixteen to eighteen,

depending on the state. This requirement can be satisfied by educating

children in public schools, state-certified private schools, or an approved

home school program. In most schools, education is divided into three 2

levels: elementary school, middle or junior high school, and high school.

Educational system in China is a state-run system, public education

run by the Ministry of Education. All citizens must attend school for at

least nine years. The government provides primary education for six to

nine years, starting at age six or seven, followed by six years of secondary

education for ages twelve to eighteen. Some provinces may have five

years of primary school but four years for middle school. There have

1 Gianna Alessandra Sanchez Moretti, et. al. “Literacy from a Right to Education Perspective”, UNESCO: Director-General of the United Nations Educational, Scientific and Cultural Organization, submitted UN General Assembly, 2013.2 Antonella Corsi-Bunker, “Guide to The Education System in the United States”, available at: http://isss.umn.edu/publications/USEducation/2.pdf. (last visited on December 30, 2017).


three years of middle school and three years of high school. The Ministry

of Education reported a 99% attendance rate for primary school and an

80% for both primary and middle schools. With regard to the age when

compulsory education ends, China has a system of nine years'

compulsory education which, according to the Education Act, may not

begin before the age of six. In actual practice, owing to differences in

regional conditions, the age at which children begin their education

varies nationwide, and the age at which they finish it varies accordingly.

According to legal provisions of China, the youngest age at which a

worker may be hired is sixteen, and the great majority of children in

China have finished their compulsory education by that age. Article 19

(education), article 24 (socialist education) and article 46 (education) 3promotes education.

After completion of primary school most children in Japan attend

state public junior high schools. Many of these are non-selective

comprehensive schools, this means that any pupil can attend. It is co-

educational and a small number of students attend private schools. These

private schools are not funded by the state but obtain most of their

finances from tuition fees paid by parents. The students in Japan have to

go to another support school after school. This type of school guides the

students' learning and teaches them to enhance their skills. If a student has

an entrance examination for an elite school or university, they have to

study for that exam at that school article 26, para 2 of the Constitution

provides for compulsory education in free of charge, but the government

interprets the provision narrowly as prohibiting collection of tuition fees,

it considers the free provision of textbooks merely as a legislative option.

As a result, the parents have to bear a burden of educational expenses

including fees, cost of teaching materials, school meals and other

necessities such as designated school and training uniforms. Articles 20,

23, 26,14,10,11 and 12 cover all the aspects of education, equality,

3 OECD “Education in China: A Snapshot”, Organisation for Economic Co-operation and Development, 2016.

The Right to Education: A Case of Judicial Activism | 51

4religion and moral education etc.

III Historical development of right to education

On April 20, 1986 a new education policy, the National Policy of

Education, 1986 was placed before the Indian Parliament for

consideration and approval. The following objectives of education were 5particularly emphasized in this policy:

1. Vocationalizaiton of education: Particularly, at the secondary stage

of education the curriculum should be job-oriented.

2. To encourage the governmental and non-governmental efforts for

wiping out illiteracy and to emphasize the necessity of adult

education, formal education, farmers' education and 'open' schools.

3. To awaken the people about the various scientific and technological

developments and to make the students at the various stages of

education aware of the same in order that they may utilize them in

their future life.

Eight bold steps on National Policy of Education, 1986

1. National system of education to provide access to education of a

comparable quality to all students, to have common educational

structure with national curricular framework containing a common

core.

2. Pace setting Navodaya schools to be started which will be residential

and free of charge.

3. Vocational courses to cover 10 percent of higher secondary students

by 1990 and 25 percent by 1955.

4. To ensure that all teachers should teach and all students study.

4 EP-Nuffic, The Japanese Education System Described and Compared with the Dutch stSystem (1 edn., 2010).

5 “Right to Education – Evolution and Judicial Contribution – International Instruments - The Parameters of the Right and the Problems of Enforcement”, available at: http://www.nuffici.nl/en/publications/find-a-publication/education-system-japan.pdf (last visited on October 23, 2017).


5. Beginning to be made in delinking degrees from jobs in selected

areas.

6. Evolving a strategy of decentralization and the creation of a spirit of

autonomy for educational institutions.

7. Constitution of this service is likely to bring a national perspective in

education.

8. Resources to be raised through:

(i) Asking beneficiary communities to maintain school buildings.

(ii) Raising fees at the higher levels of education, and

(iii) Levying cess or charge on the user agencies.

Efforts from educationists, academics and civil society groups that

focused on a rights based approach finally yielded results in 2002, when th

the 86 Constitutional Amendment Act was passed by parliament and

article 21A, which makes right to education a fundamental right, was

included in the constitution. In doing so, it put the right to education at par

with the right to life stated in article 21. Article 21 A states: “the state shall

provide free and compulsory education to all children of the age of 6 to 14 6

years as the state may, by law determine”.

IV Constitutional evolution of right to education

through judicial activism

Directive principles of state policy

Article 41 of the Constitution of India lays down that the state shall,

within the limits of its economic capacity and development, make

effective provision for securing the right to education. Article 45, of the

Constitution of India provides that the state shall provide early childhood

care and compulsory education for all children until they complete the

age of six years. Article 46, of the Constitution of India requires the state

to promote with special care the educational and economic interests of

6 The Constitution of India, as amended by The Constitution (Ninety-eight Amendment) Act, 2012.


the weaker sections of the people, especially of the scheduled castes and

scheduled tribes and to protect them from social injustice and all forms of 7exploitation.

8 In Mohini Jain v. State of Karnataka, the government of Karnataka

issued a notification that the private medical colleges in the state of

Karnataka charge exorbitant tuition fees from the students admitted other

than 'government seat quota'. Mohini Jain, a medical aspirant student

filed a petition in Indian Supreme Court challenging this notification. The

question which was raised before the apex court: “whether right to

education is guaranteed to the Indian citizen under the Constitution of

India?”. The Supreme Court of India observed that mention of 'life and

personal liberty' in article 21 of the Constitution of India automatically

implies some other rights, those are necessary for the full development of

personality, though they are not enumerated in part III of the Constitution

of India. Education is one of such factors responsible for overall

development of an individual and therefore, right to education is

integrated in article 21 of the constitution.

Article 21

The right to education up to the age of fourteen years has been raised, 9

by the decision of the Supreme Court, in Unni Krishnan v. State of A.P.,

to the level of fundamental right. In this case, the Supreme Court 10confirmed the decision in Mohini Jain v. State of Karnataka – namely,

that the right to education flows from the right to life and obliges the state

to provide basic education to all citizens up to the age of 14. However, the

decision limited the right to higher levels of education, which is subject to

the economic capacity and development of the state. The court states:

We cannot believe that any state would say it need not

provide education to its people even within the limits of its

7 Uma, “Right to Education (RTE): A Critical Appraisal” 6(4) IOSR Journal Of Humanities And Social Science (2013).8 1992 AIR 1858.9 1993 AIR 2178; 1993 SCR (1) 594.10 Supra note 8.


economic capacity and development. It goes without saying

that the limits of economic capacity are, ordinarily speaking,

matters within the subjective satisfaction of the state.

The right to education further means that a citizen has the right to call

upon the state to provide educational facilities to him within the limits of

its economic capacity and development. By saying so we are not

transferring article 41 from part IV to part III- we are merely relying upon

article 41 to illustrate the content of the right of the right to education

flowing from article 21.

Article 21A

th The Constitution (86 Amendment) Act, 2002 inserts new article 21

A in the Constitution to make right to education a fundamental. Article

21A makes education from the use of six to fourteen years old,

fundamental right, within the meaning of part III of the Constitution. It is 11

popularly known as “primary education.” The obligation of state to

provide education to the children above the age of fourteen years would 12still depend upon the economic capacity and development of the state.

Holding that the right to appear in class VIII Board examination was

another fact of the right to education guaranteed under article 21A,the 13

Patna High Court in Anil Kumar Roy Sharma v. State of Bihar, directed

the board to permit the students of a private school to appear in class VIII

board examination.

The term “child” for the purpose of article 21A is held to be a child

who is a citizen of India. The Kerala High Court in Zeeshan v. District 14

Education Ofcer, Kannur, upheld the denial of admission to standard V

in a school of a child who was a citizen of Pakistan, under section 22(ii) of 15the Kerala Education Act, 1959.

11 Right to Education Platform 2013, “Know your RTE>About”, available at: http://righttoeducation.in/know-your-rte/about (last visited on October 21, 2017).12 Narendra Kumar, The Constitutional Law of India, 166-167 (Allahabad Law

stAgency, Faridabad, 1 edn. 2009).13 AIR 2005 Pat. 38.14 AIR 2008 Ker. 226.15 Chandrika Prasad Yadav v. State of Bihar, (2009) 4 SCC 414.


16 Avinash Mehrotra v. Union of India & Others, arose out of a fire

that started in a middle-school in Kumbakonam, Tamil Nadu. The school,

a single thatched roof building with no windows and one entrance and

exit was a private school that was said to have 'sprung up in response to

drastic cuts in government spending on education'. The fire started in a

nearby makeshift kitchen where cooks were preparing a midday meal,

and killed ninety three children and injured many others. An instant writ

petition was filed under public interest litigation in order to protect school

children against similar future tragedies and to improve the conditions of

the schools in the country. The Supreme Court issued notices to the Union

of India, state governments and the union territories. Twenty-seven states

and union territories filed affidavits admitting that many schools did not

meet their self-determined safety standards (which were in any event

below the standards of the National Building Code of India, 2005).

The court decided that there is a fundamental right to receive

education free from fear of security and safety, and the right to education

incorporates the provision of safe schools pursuant to articles 21 and 21A

of the constitution. No matter where a family seeks to educate its children

(i.e., including private schools), the state must ensure that children suffer

no harm in exercising their fundamental right to education. State

governments and union territories were directed to ensure that schools

adhere to basic safety standards and that school buildings are safe and

secure according to the safety norms prescribed by the National Building

Code and affidavits of compliance were required to be filed by authorities

concerned. In interpreting the right to education Dalveer Bhandari J.

reasoned: "educating a child requires more than a teacher and a

blackboard, or a classroom and a book. The right to education requires

that a child studies in a quality school, and a quality school certainly

should pose no threat to a child's safety."

If we really want to help the society, educationally and economically

backward class, we need to focus earnestly on implementing article 21A

16 (2009) 6 SCC 398.


of the constitution. Without article 21A the other fundamental rights are

effectively rendered meaningless. Education stands above other rights,

as one's ability to enforce one's fundamental rights flows from one's 17

education. Also there is a need of uniform education system would

achieve code of common culture.

V Right to Education Act, 2009

The Right of Children to Free and Compulsory Education Act or

Right to Education Act (hereinafter RTE Act), 2009, which describes the

modalities of the importance of free and compulsory education for

children between 6 and 14 in India under article 21A of the Constitution

of India. Education has also been made free for children for six to 18fourteen years of age or up to class VIII under the said Act. This Act

stcame into force on 1 April 2010. Bypassing this bill; India has joined the

league of over 130 countries which have legal guarantees to provide free

and compulsory education to children. The right to education of persons

with disabilities until eighteen years of age is laid down under a separate

legislation- the Persons with Disabilities Act. A number of other

provisions regarding improvement of school infrastructure, teacher-20student ratio and faculty are made in this Act.

The RTE Act, 2009 basically talks about the right that guarantees 21

every child of the age of 6 to14 be provided 8 years of free and

compulsory elementary education. It also makes the state bear any cost 22that prevents a child from accessing school. This is done so that, no child

shall be liable to pay any kind of fees or charges or expenses which may 23

stop the child to get education.

17 Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1. 18 Supra note 16.19 The Right of Children to Free and Compulsory Education Act, 2009, s. 3.20 Nithin Chowdary Pavuluri, “Provisions of Right to Education in India”, available at: http://www.jgu.edu.in/public/lac/pdf/RTE.pdf. (last visited on October 23 , 2017).21 Supra note 19 at s. 2(c).22 Manjusha Nitin Suryawanshi, “Constitution of India and the Right to Education” 5 Research Front (2015).23 The Right of Children to Free and Compulsory Education Act, 2009, available at: http://eco.du.ac.in/RTE%20-%20notified.pdf. (last visited on October 22, 2017).


Chapter III of the RTE Act, 2009 talks about the duties of state

government and local authorities. Section 6, which talks about the areas 24or limits of neighborhood within which a school should be established,

this is the duty allotted to the state government. Where it provides for a

school to be established within a walking distance of one km of the

neighborhood, for the children in classes' I-V, and for children in classes

VI-VIII, It is within a walking distance of three kilometres of the 25neighborhood.

The RTE Act also contains specific provisions for disadvantaged

groups, such as child laborers, migrant children, children with special

needs, or those who have a disadvantage owing to social, cultural, 26economic, geographical, linguistic, gender or any such factor. The Act

stresses on the point that children with disabilities should also be 27

educated in the regular mainstream schools. This Act not only limits to

government schools, but also to all private schools. It provides that all the

private schools should enroll children from weaker sections and

disadvantaged communities in their incoming class to the extent of 25%

of their enrolment, by simple random selection. The children admitted

through above reservation should be treated on par with all the other

children in the school. The state should subsidize the rate of average per 28

learner costs in the government schools.

The Act provides a three year period from the date of

commencement of the Act (i.e., three years from 1, April 2010) for

establishing a school where ever they are needed as by the provision of

the law. The appropriate government and the local authority are given this

duty. The central government is entitled to the following duties by the

Act:

(a) develop a framework of national curriculum with the help of

24 Supra note 19, s. 2(n).25 Supra note 23.26 Supra note 19, s.8 and 9.27 Ibid.28 Supra note 20.


academic authority specified under section;

(b) develop and enforce standards for training of teachers;

(c) Provide technical support and resources to the state government for

promoting innovations, researches, planning and capacity 29

building.

The National Commission for Protection of Child Rights (NCPCR)

has been set up as a mandated authorities to monitor the implementation 30

of the right to education.

VI Conclusion

The importance of education cannot be denied. It sustains the human

values which contribute to the individual and collective well-being. It

forms the basis for lifelong learning and inspires confidence to face

challenges. It provides the skills to individuals to become more self

reliant and aware of right opportunities. It also enhances the ability of

individuals to act like more responsible and more informed citizens and

have a voice in politics and society, which is essential for sustaining

democracy. It is essential for eradicating poverty and it allows people to

be more productive and playing greater roles in economic life and

earning a better living. The education is the key which allows people to

move up in the world, seek better jobs, and ultimately succeed in their

lives. So education is very important, and no one should be deprived of it.

The importance of primary education has been neglected by India since

independence knowingly or unknowingly. However, government of

India now is willing to improve primary education by bringing legislation

i.e., right to education.

Though, there have various barriers to universal primary education

in a country like India but such obstructions may be removed by way of:

Encouraging girls and not only them but also their parents about the

significance of education.

29 Supra note 23.30 Id. at s.31.


Removing physical distance for the universalisation of elementary

education in a large country like India. Specifically in rural India,

there is an urgent requirement of availability of schools in nearby

areas (minimum one school for every village) for protecting the

initiatives to provide education to all.

Eradicating child labour from the society, many children basically

from below poverty line families are sent to work for earning money

to supplement family income. In this situation proper

implementation of law is inevitable.

Supervising to the educational establishments regarding

infrastructures, teaching aids, class rooms, toilets, drinking water

etc.

Taking strict actions for violation of such right to education by

concern authority.

Providing proper placements after completion of their education

may also encourage peoples about such issues.


AADHAAR, A CATALYST TO

DOWNFALL OF PRIVACY*Shobhit Tiwari

**Faizan Mohd. Khan

Abstract

Today, every individual is in a dilemma, whether to accept Aadhaar, and the consequences following it, or not. The core issue upon which the Aadhaar is being opposed is 'privacy'. Inclusion of privacy as a fundamental right by the Supreme Court is remarkable with a nine judges' bench unanimously declaring it, has made this debate intense. This work deals with major ongoing proceedings and development in era of right to privacy of an individual and descriptively analyses the pros and cons of the scheme. We have covered the ideas or the arguments concerning the people from both sides of this controversial issue and also the problems which are faced by the common man as an outcome of this scheme. Emphasis has been laid upon the controversial aspect of Aadhaar which is 'use of biometrics' and all the possible repercussions flowing inclusion of such feature are dealt with. Looking in the global trends, different identification systems of countries are looked upon and compared with Aadhaar. Critically analyzing the whole issue, some major glitches involved with the application of this system are discussed and supported with claims which have been largely prevalent along with the usage of such identification systems.

I Introduction

AUGUST 24, 2017, will always be remembered as an epoch making

day in the history of Constitution of India and Indian judiciary. A

remarkable unanimous judgment rendered by the nine judges' bench of

Supreme Court headed by the then CJI J.S. Khehar. The bench comprised

of Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F.

Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S.

Abdul Nazeer. Six different judgments and still unanimity on the crucial 1

point of fundamental rights that:

* 3rd year student, B.A. LL.B, Dr. RMLNLU, Lucknow.** 3rd year student, B.A. LL.B, Dr. RMLNLU, Lucknow.1 Justice K. S. Puttaswamy (Retd.) v. Union of India. & Ors., 2017 S.C.C. Online S.C. 996.

Right to privacy is a fundamental right intrinsic under article

21 which includes right to life and personal liberty enshrined

under part III of our constitution. It is an inalienable right and

hence not a creation of Constitution itself. It is constitutional

core of human dignity. Privacy includes marriage, sexual

orientation, personal intimacies, sanctity of family lives,

procreation, etc. It is a right to be left alone. It is an important

feature of dignity of human beings. Any encroachment will

definitely lead to judicial scrutiny of the acts of state to check

whether they follow procedure established by law.

The judgment expressly overrules the judgment given by Supreme 2Court in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of

3U.P., where eight judges' bench and six judges' bench respectively held

that right to privacy is not a fundamental right; and A.D.M. Jabalpur v. 4

Shivkant Shukla, where majority held that article 21 can be suspended

during emergency. Not only this, the judgment will potentially go on to 5 6challenge the decision in Naz Foundation case and Aadhaar case.

Interestingly, the motive of Aadhaar is somehow fabricated with the very

idea of right to privacy.

Many petitions are being filed against Aadhaar (Targeted Delivery

of Financial and other Subsidies, Benefits and Services) Act, 2016. One

of the major issues is the collection of biometric data is violative of right 7to privacy intrinsically present under right to life and personal liberty of

our constitution. Now, let us see what is an Aadhaar card. Aadhaar card

consists of tweleve digits random no. giving a unique identity to Indian

citizen. The card acts as a national identity card which is being issued by

Unique Identification Development Authority of India, whereby enroller

has to provide his biometric data which includes fingerprints, iris scans

2 1954 S.C. 300.3 A.I.R. 1962 S.C. 1295.4 A.I.R. 1976 S.C. 1207.5 Suresh Kr. Kaushal v. Naz Foundation, 160 D.L.T. 277.6 Supra note 1.7 Constitution of India, art. 21.


8and facial photograph as well as his demographic data including name, 9date of birth, address, etc. It is said to be the unique and resilient way to

curb fake identities, corruption and bring in transparency and

accountability. The scheme also provides a basis for availing various

government schemes and programs for effective delivery of benefits

without any leakages in the system. Aadhaar card is devoid of classifying

people as it does not categorize people on the basis of their caste, religion,

race, tribe, ethnicity, and language, record of entitlement, income or 10

medical history. It is the key player for government of India's 'Digital

India' initiative and a strategic policy tool for managing financial

budgets, curbing corruption, ushering in transparency within the

government and financial inclusion of underprivileged sections of the

society. It acts as a bridge for government to reach out and provide

various benefits, subsidies and services to citizens.

The project, basically, without a doubt, is a very bright and splendid

step taken by government of India but the way it is being implemented,

some provisions of Aadhaar Act, 2016, and government's plan to make it

mandatory is causing a lot of dissent in the public arena. Especially,

questions regarding the right to privacy of Indian citizens. Now the

judgment of nine judges' bench formulated for deciding about the stand

of right to privacy in Constitution of India has already been kept on a

conclusive remark. The plights of common people will depend upon the

decision of the five judges' bench in Aadhaar case (which is still pending)

which is going to play a huge role in the implementation of Aadhaar

scheme as supported by the government of India vis- a- vis right to

privacy of Indian citizens.

II Historical background

The very inception of Aadhaar card can be dated back to the year

1999 after we won Kargil war against Pakistan. A review committee

8 Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, s. 2(g). 9 Ibid. 10 Ibid.

Aadhaar, A Catalyst to Downfall of Privacy | 63

under the leadership of then security analyst K. Subramaniam was

formulated by the name Kargil Review Committee, this committee

recommended issuing of identity cards to the villagers residing near the

border regions. The committee's recommendations were analyzed and 11

accepted by Group of Ministers headed by Mr. L. K. Advani in 2001.

Later in 2003, the Citizenship (Amendment) Bill, 2003 was

introduced by Mr. L. K. Advani which put in place a clause for

compulsory registration of Indian citizens by issuing a national identity

card. A multipurpose National Identity Card was issued to discourage

illegal immigrants and enhance national security. With the change in

government, the process to issue a national identity card took gear. UPA

government ushers in Unique Identification Development Authority of

India under a notification of Planning Commission of India. Nandan

Nilekani, co-founder of Infosys, was appointed as the Chairman of this

resplendent project. In 2010, UIDAI launched the logo and the name as

AADHAAR or BASE in Hindi. In 2012, Aadhaar online verification

system was introduced to check the validity of the Aadhaar card holder.

Since then, Aadhaar is continued to be linked with various benefits,

subsidies and services, etc to check leakages as well as to curb corruption

by bringing in transparency in governance.

Initially, BJP-led NDA government was against Aadhaar being

violative of right to privacy of Indian citizens but after the meeting of

Nandan Nilekani and PM Narendra Modi, the government changed its

stance in support of Aadhaar. Now, NDA government is trying to make

Aadhaar card mandatory for every citizen of India such that they can

enroll themselves for government benefits, subsidies and services. At this

point of time, Aadhaar becomes world's largest project of registration of

citizens by any country with almost 1.17 billion citizens already

registered themselves. Though making it mandatory for every citizen

such that they can avail the benefits provided by the government to them

11 Aadhar Card Guru, "History Outline of Aadhar – How It Comes into Existence," Aadhar Card, available at: https://aadharcard.in/aadhar-histroy. (last visited August 27, 2017).


is making this whole sensible grand plan a total failure, as our

Constitution provided for personal liberty under article 21 and it includes

privacy as well. The decision to enroll for Aadhaar scheme must reside

with citizens and not the government. Promotion of a national identity

card in addition to facilitation of various benefits, subsidies and services

directly to the citizens is indeed a magnificent step. But the reticence of

government of India and Aadhaar Act on privacy issues and their

cognition as to why making it mandatory, undeniably, is causing huge

dissent among masses. At present, number of petitions have been filed

against various provisions of Aadhaar Act which is being analyzed by the

five judges' bench of Supreme Court under the case name as Justice K.S. 12Puttaswamy (Retd.) v. U.O.I. & others. After the beaconing judgment

that right to privacy is a fundamental right of our Constitution which was

unanimously rendered by the nine judges' bench of Supreme Court, now

all eyes are on the five judges' bench of Supreme Court which is

constituted to decide the Aadhaar case.

Right to privacy

Constituent Assembly while drafting the Constitution of India

nowhere used the word 'privacy', for once. This is the most precarious

argument put forth in cases by the side standing against right to privacy in

India. For them, if constitutional drafters were of the view that Indian

citizens have right to privacy, they should have mentioned it

unequivocally. As a result, Indian judiciary since 1954 is trying to decide

as to where right to privacy stands vis- a- vis the Constitution of India.

The first case came up as early as in 1954 in M.P. Sharma v. Satish 13

Chandra. The issue was related to the fact that search and seizure of 14

documents were violative of right to property (no longer a fundamental 15right) and right against self-incrimination of the Constitution of India.

The eight judges' bench held that protection of social security is regulated

12 Supra note 1.13 Supra note 2.14 Supra note 7 at art. 19(1)(f).15 Supra note 7 at art. 20(3).


by law which provides an overriding power to state of search and seizure.

Drafters of the Constitution, if thought it fit, would have made a provision

by recognition of right to privacy as fundamental right to barricade the

power of state. But it is not the case and therefore, right to privacy cannot

be considered as fundamental right.

16 In Kharak Singh v. State of U.P., petitioner was a dacoit and filed a

writ petition against power of police surveillance which allowed home

visits at nights, tracking every move of Kharak Singh, etc. The six judges'

bench of Supreme Court ruled in favor of respondent while saying that

right to privacy is not a fundamental right. But minority opinion of Subba

Rao J. can be taken into account where he said that it is veracious that

right to privacy is not explicit in the Constitution of India but it is an 17intrinsic part of right to life and personal liberty of the Constitution of

India.

18 In Gobind v. State of M.P., the Supreme Court of India upheld the

19fact that right to privacy is a part of right to life and personal liberty

under the Constitution of India. But this right is not the absolute one as it

can be overshadowed by procedure established by law.

20 In R. Rajagopal v. State of T.N., the apex court held that right to

privacy is nothing but 'a right to be left alone' and right to privacy is

implicit in articles 19(1) and 21 of our Constitution. Right to privacy can

also be attributed to a prisoner in his private matter which he didn't want

anyone to invade or took notice of.

21 In P.U.C.L. v. U.O.I., the apex court held that individuals have a

right to privacy concerning their private conversations on telephone and

arbitrary tapping of telephones hinder their very fundamental right

intrinsic under article 21 of our constitution. But the notion, mindset and

vision of people of India changed after the landmark judgment of Justice 16 Supra note 3.17 Supra note 5.18 (1975) 2 S.C.C. 148.19 Supra note 5.20 (1994) 6 S.C.C. 632. 21 (1997) 1 SCC 301.


22K.S. Puttaswamy (Retd.) v. U.O.I. in which the nine judges' bench of

Supreme Court unanimously held that right to privacy is a fundamental

right and is ingrained in article 21 of part III of Constitution of India.

Thus, a 547-pages' judgment not only overruled previous larger bench

judgment of M.P. Sharma and Kharak Singh cases but its reverberation is

definitely going to echo in different cases where right to privacy is being

neglected upon. The previous versions of right to privacy in earlier cases

are vague as judges portrayed the shattered dimensions of 'privacy'. The

judgment not only declare right to privacy as a fundamental right of

Constitution of India but also in doing so widens its scope to embrace in

its ambit the cases like Aadhaar, homosexuality, suspension of 23fundamental rights like article 21 during emergency, etc. Thus, at

present, right to privacy can be regarded as a fundamental right enshrined

under part III of the Constitution.

III Global trends regarding national identity card

With 1.17 billion population already enrolled, Aadhaar has become

world's biggest National Identity Program. Government is trying to

encapsulate within its ambit everything through which any individual

necessities are attached. The cohesion of various benefits, subsidies and

services are not the point of contention in Aadhaar scheme but the

collection of biometric data is. As a result, the clutches of state

intervention has increased in cases of breach of the privacy of the

citizens. For an instance, for making a transaction of Rs. 50,000 and

above you will require Aadhaar and this is your last resort. Already, the

compulsion to add Aadhaar details to bank accounts by last date of this 24

year has been put forward by the government. Therefore, the citizens are

basically forced to avail the benefits of Aadhaar which is transgression on

22 Supra note 1.23 Ibid.24 ENS Economic Bureau, “Aadhaar must for Bank Accounts, Transactions over Rs 50,000” The Indian Express, available at: http://indianexpress.com/article/business/economy/aadhaar-must-for-bank-accounts-transactions-over-rs-50000-supreme-court-4707454/ (last visited on August 27, 2017).


liberty as well as privacy of the individual citizen. This is the case with

India. On comparing our unique identification system with the other

identification systems of the world; we will get to know the depth of

trouble we might get in future which will be followed by the insecurity of

our privacy.

Looking at the most powerful states and their identification systems,

the first country which gets highlighted (as an idol) is the United States of

America. It is in the talks that Aadhaar should be totally accepted as it is

similar to the Social Security Number (SSN) used in USA, but practically

America's SSN stands on a different stone than India's Aadhaar project.

In fact, both differ to a great extent. In understanding these differences,

authentication is one important aspect. Aadhaar analyses the

demographics of an individual with which the records are pre-stored in its

database, this according to the government will prove to be a game

changer when the issue is of identity fraud. On other hand the SSN was

not developed to meet the needs of authentication and that too at national

level. Only in specific cases it requires authentication. The most

controversial aspect of Aadhaar “the biometrics” is also absent in case of

SSN. In 1930's, the American government felt the need to limit the

system by not including biometrics, which involves collecting the

fingerprints which prima-facie shoot the idea of criminal activity in

minds of people. Periodically a reform was expected in fields of

immigration and for that BELIEVE card (biometric enrolment) was

introduced, which locally started information and electronic verification

of employment but no considerable development was observed

afterwards, and scheme lost its relevance with time.

Seeding is again one alarming issue, talking of Aadhaar, the 12 digit

number is multiply seeded in many databases by the government which

made the private enrollers responsible for the task initially, reflecting its

lack of concern for handling the information again emphasizing on the

profiling issue. No process involving seeding is used operating the SSN;

instead the government in America has cautioned the authorities and

individuals about the usage of SSN as unique identifier and appeals them


for using a number of different cards associated with their respective 25 fields.

The government of USA has provided safeguards for its SSN

through the Social Security Act of 1935. The system of Aadhaar has been

functioning in absence of a legal configuration for almost seven years

since its inception. It is clear from the analysis above that Aadhaar and

SSN are two very different systems which work differently owing to their

applications. There are people who cannot find the dissimilarity between

the two and these are the same people who lay path for compulsion of

linking Aadhaar to all the fields by quoting the fact that USA uses a

similar system of identification, which in fact is vague in its entirety.

It has been high time, government of India should learn from the

mistakes of the most developed and sophisticated nation as Aadhaar was

designed in order to be used by private entities but the SSN was not but

when the same was used by private entities and the repercussions were

not pleasing, it lead to the increase in identity theft on a great scale. When

countries like America having the most sophisticated technology and a

limited population was not able to keep a check on these glitches how can

we expect success with such system in a nation with second largest

population, and limited resources. “A biometric identifier such as finger

print can be an effective and highly accurate way to establish the identity

of an individual but it can also facilitate much higher degree of tracking 26and profiling than would be appropriate for many transactions”.

USA one of the most developed and powerful country. Therefore,

USA acts as a role model for other countries to follow. Further,

comparing and looking into the identification systems of the different

countries, Brazil, Indonesia and Malaysia are found to be comparable

25 Jayesh Shinde, “Govt. Makes Aadhaar A Must For Opening Bank Accounts. Here's How To Secure Its Leaky database”, available at: http://www.indiatimes.com/technology/news/how-does-aadhaar-compare-with-other-id-systems-in-the-world-how-to-secure-its-leaky-database-276972.html (last visited on August 30, 2017). 26 Marc Rotenberg, President, Electronic Information Centre.


keeping up with the Aadhaar issue. Since 1980's Brazil was of view that a

unified identification card program should be worked upon which will

prove to be a step beyond other developed nations. So the model of

ABRID emerged, it association of digital identification technology

companies or in other words, Brazilian genre of Aadhaar. The Brazilian

government did not make it compulsory by law but it is necessary in

practice, which sounds a bit awkward. Along with providing a proof of

citizenship, biometric banking was the major issue encompassing the

development of ABRID. Whenever there is use of biometric data there

are serious chances of fraud and thereby breach to 'privacy' cases.

Moreover, Aadhaar does not serve as a proof of citizenship as Brazilian

ABRID but both are similar in a way that they collaborate with private

agencies to collect Biometric data of their respective citizens when they

are still dawdling behind in technological advancements.

In Indonesia, the card in use is Karta Tanda Panduduk (KTP),

basically a combination of identification features taken from India and

China involving Biometrics with only a difference in which only two of

the fingerprints are cached on the chip-card (although in database 10

fingerprints) the residents require eKTP (smart form) for availing various

services like health care programs, banking and telecom. The functioning

is smooth and no major flaw has made to the surface but again, it is in

transitional period so no strong conclusions can be drawn yet.

Furthermore, Malaysia possesses one of the most sophisticated and

advanced identification systems in the world, as in 2001 only it was the

first nation to introduce biometrics combined with the photograph 27

embedded in a chip-card system. There are many features but the

flashiest one of all is that the citizens who opt for MyKAD card (unique

card) have freedom of choosing the applications of this card, which

makes it crystal clear, that the government respects the consent of its

citizens. It is the people who choose and add services to which MyKAD

card will be utilized. The absence of this feature in our system insults the

importance of consent and weakens the principles of liberty of

27 Supra note 26.


individuals as enshrined in our constitution. The use of biometrics

mechanism is highly questionable and also it is a rarely used mechanism

around the globe mainly owing to the factors of data insecurity and cyber

threats. Mere statement by the UIDAI (about central database being

adequately secured) and other concerned authorities (on central database

being adequately secured) is not going to change these proposed threats

to privacy of an individual. In other countries the situation is different

with controlled population and swift administration but with India

whether the choice can be offered to citizens for applications of Aadhaar,

will be a very difficult question to answer. Aadhaar scheme is still in

progress and government, in this point of time, will have to work to

enhance the data protection of the information they had collected to make

it a foolproof scheme.

IV Flawed arguments put forth by government of India against right to privacy in Aadhaar case

Argument 1 – In M.P. Sharma and Kharak Singh cases the eight

judges' and six judges' benches respectively declined that right to privacy 28

is a fundamental right under the Constitution of India.

First of all, the nine judges' bench already decided that right to

privacy is an intrinsic part of article 21 of the Constitution of India and

thus overruled the judgments given by the Indian Supreme Court in the

two cases. The argument of government of India is flawed in the manner

that the Supreme Court benches in both cases did not thoroughly reflected

upon the issue of privacy as the main question were at altogether

different. Thus it can be said that what the benches said in their judgments

in the two cases does not form the ratio decidendi of the case and hence

not binding to any subsequent smaller benches.

Argument 2 - Supreme Court did not restrain UIDAI to carry on the

collection of biometric data for the purpose of Aadhaar Card. Already,

UIDAI has issued Aadhaar Cards to almost 90% of Indian population and

28 Supra note 5


thus the money spent on the scheme would definitely has a negative 29effect.

The biometric data is very fragile and private information of an

individual. Supreme Court in its recent judgment on right to privacy 30

explained 'privacy' per se and made it a fundamental right. Hence,

collection of biometric data is in itself a violation of right to privacy until

and unless given voluntarily by the individual. The cases like Mahendra 31Singh Dhoni's Aadhaar information being leaked online, Jharkhand

Directorate of Social Security's leakage of critical private information of

millions of citizens including bank account details and Aadhaar 32

numbers, etc. will make it a more serious breach of privacy. Even the

Aadhaar Act doesn't provide for any provision for redressal of the breach

to an individual. It is upto the discretion of UIDAI whether to make an

FIR of the breach or not. Therefore, being an intrinsic part of right to life 33

and personal liberty, Right to privacy of an individual is much more

important for a state to protect rather than loitering about the money

spent. It is absolutely true that a huge amount of money is already being

spent upon collection, registration and issuance of Aadhaar Card to

Indian population but the point of clash is the fact that right to privacy

being a fundamental right will always overshadow its encroachment

even if it involves huge lots of money.

Argument 3–Aadhaar Scheme is an effective source of various

social benefits like MGNREGA, PDS system, LPG subsidies, etc. 34Therefore, it should be allowed to its full utility.

29 Supra note 5.30 Ibid. 31 HT Correspondent, “MS Dhoni'sAadhaar details leaked, wife Sakshi complains to Ravi Shankar Prasad”, available at: http://www.hindustantimes.com/cricket/ms-dhoni-s-personal-info-from-aadhar-card-form-leaked-wife-sakshi-complains/story-8M4B7ZabHIu8cAcWhKuIzH.html (last visited on August 27, 2017).32 The Quint, “Shocking Data Breach: Aadhaar Details of Over a Million Leaked”, The Quint, available at: https://www.thequint.com/india/2017/04/23/shocking-data-breach-million-aadhaar-number-details-leaked-online-jharkhand-directorate-of-social-security (last visited on August 27, 2017).33 Supra note 5.34 Ibid.


There is no doubt that the linking Aadhaar to these benefits,

subsidies and services, government is keen to check leakages and

corruption and wants to allow underprivileged and middle-class to fully

enjoy the benefits. It will lead to accountability and transparency in

governance. But the duplication of biometrics will change this fertile

argument to a barren one. It is scientifically proven that fingerprints can

easily be duplicated using various products like silicon gel which enable

you to form a fake fingerprint or copy anybody's fingerprints like what 35

happened in ICT College Mumbai's fake fingerprinting case. Also, what

about Persons with Disabilities; and who lost their fingerprints due to

hard daily manual labour; or who lost their eyesight due to cataract or

some another eye disease affecting iris? Are there any provisions for

them to avail these benefits as they lack their biometric data? So, plainly,

there will be few cases of such kinds then what steps do UIDAI will take

as it is up to UIDAI itself to lodge an FIR if it deemed necessary and not

the individual who is being conned.

Argument 4–Right to privacy does not lie as India is a developing

economy where millions of people cannot avail even basic necessities of 36life like food, shelter, clothing, etc.

This is an erroneous argument. Right to privacy cannot be accorded

to a person by categorizing people on the basis of rich and poor. Instead, it

is the basic facet of life and personal liberty of a person and a sacrosanct

right of an individual. World is changing and so is poor. With the

digitalized world, poor people are also becoming well aware of their

fundamental rights and also how to embrace and protect them from any

obtrusion. Without putting such an argument government can, rather,

work to provide these underprivileged people with certain benefits,

subsidies and services while helping them sustain their right to privacy.

35 Musab Qazi, “You will be glued to this: Mumbai college's students trick biometric system”, available at: http://www.hindustantimes.com/mumbai-news/you-will-be-glued-to-this-mumbai-college-s-students-trick-biometric-system/story-W64f1jdMtecxKDml2DakeI.html (last visited on August 27, 2017). 36 Ashutosh Bhardwaj, “Govt. Backs Privacy Right But Said Opposite in Court” Indian Express, Aug. 24, 2017.


Argument 5 – Constituent Assembly debates are proof that our

constitutional drafters did not intend to add right to privacy as a 37fundamental right in our constitution.

Once again, Supreme Court in its various landmark judgments has

already added new definition, interpretation and dimensions to part III of

our constitution. For example, the basic purpose of various constitutional

amendments enshrined, portrays that constitution is not a complex rigid

document. The intention is that the 'Basic Structure' of constitution

should not be changed. Hence, law will evolve within its time and space.

The basic Constitution was not the same as what it is nowadays. This is

happened because time is changing and “law is always ought to be”.

Therefore, maybe the constituent assembly debates didn't involve right to

privacy but the debates are also tight-lipped on the issue of whether or not

new angles can be added or interpreted by the Indian judiciary on case by

case as well as time basis. Silence is actually good so that with changing

time the laws can also be evolved.

Argument 6 – Most of the citizens have already given their biometric

as well as demographic information to UIDAI and therefore it is futile to 38argue their Right to privacy is being hindered by.

It is absolutely true that most of the Indians have already parted their

information to enroll for Aadhaar. But legislators should keep in mind the

preparatory steps and decisive repercussions of a particular legal

enactment. The purpose of legislation will not determine whether the

fundamental rights are intrinsic or extrinsic to that particular enactment.

Hence, it puts the onus on government itself to come up with a stringent

data protection laws which assist Indians to protect their fundamental

right of privacy with more precision. Here, government already has

constituted a Data Protection Review Committee under the chairmanship

of retired judge of Supreme Court of India, Justice B.N. Shrikrishna.

Committee will obviously get a lot of assistance by the landmark

37 Supra note 37.38 Ibid.


judgment of Supreme Court of right to privacy being a fundamental right.

V Critical analysis: Aadhaar Act vis- a- vis right to privacy

Aadhaar scheme is unable to live up with the multitudinous of

promises it delineated. A unique identity which enables Indians to

distinguish themselves with others; an identity to avail various benefits of

number of social schemes for downtrodden or underprivileged sections

of the society; an identity to curb corruption and leakages and

shepherding transparency and accountability in the governance. At this

point of time, the voices against implementation of Aadhaar raised

significantly. The only point of clash between government and masses is

Aadhaar's lack of any rigorous data protection laws to protect privacy of

citizens. Right to privacy is now being recognized as a fundamental right

which in turn makes it more inflammable counter narrative of masses

against the government.

The gathering of biometric data is causing a lot of demur among

citizens as they are afraid of the consequences they will have to face if

their pivotal and private information are being compromised by a

criminal, miscreant or even government. Few analysts see the scheme as

a weapon in the arsenal of government for its mass surveillance project. A

project which is to get hold of the individual whereabouts without him

knowing nothing about the same usually for sake of national security. 39There is a provision also in the Aadhaar Act where an individual privacy

can be compromised in the interest of national security. The provision is

in public interest, public welfare and obviously national security. But

government can access data repository at any point of time to look into

the private life of an individual taking this provision as an unreasonable

medium to transcend the boundaries they are not bound to.

Lack of stringent data protection laws is causing a huge lot of trouble

for Indian citizens. Initially, citizens were in dire state as to how they are

going to protect their privacy when the constitution is silent about it. But,

39 Supra note 8.


the milestone judgment given by the nine judges' bench of Indian

Supreme Court created a milieu of relief that now we have a strong

argument to put forth in Supreme Court against Aadhaar's hindrance to

our privacy. Government of India was not at fault thoroughly. Since,

government formulated Srikrishna Committee to review Data protection

laws vis- a- vis Aadhaar and other similar schemes and to provide

recommendations as soon as possible. Instead waiting for the

recommendations by the Committee, government is still constantly

moving on with the Aadhaar scheme. As the Committee is still under the

umbrella of researching and reviewing, it is viable step to take a pause in

making Aadhaar mandatory as well as adding different benefits,

subsidies and services to Aadhaar. It will in turn make the echoing voices

against the Aadhaar to revert back and sustain for the time, the committee

come up with its recommendations and government come up with data

protection legislation.

Aadhaar Act is also in need to be alter a little bit so as to include the

faculties for providing citizens assurance that the private information

which they have provided to the government is not in a dangerous state of

leaking through different mediums and premiering their private life in

open. Government has to come up with a provision under which it can

make UIDAI responsible for all the unwanted breaches of privacy cases.

In addition, UIDAI needs to take a stance in every possible cases arising

out of data breaches which the authority previously denied completely at

a public domain.

The UIDAI assures us that the security measures for protection of

technical data are efficient, but reality doesn't go hand in hand. In

Jharkhand, certain private and sensitive information including Aadhaar 40number were leaked out to the public sphere. The Centre for Internet and

Society claimed as many as 130 million Aadhaar card holders'

information was leaked from four websites of the government itself, a

40 Supra note 30.


41claim refused by UIDAI. Around same time, about 200 websites of the

central and state government departments were reported to have

displayed personal details and Aadhaar numbers of many beneficiaries.

The UIDAI removed the details and the government pronounced that the 42

leak was not the result of breach of its servers.

It was brought out that ticket booking server of Indian railways had

been hacked and personal information of around 10 million customers

was expected to have been stolen from the servers of the portal. It was

reported that Indian Railways Catering and Tourism Corporation

officials also feared that personal details including date of birth, cell

numbers and other such details of its customers had been sold on a CD.

The IRCTC denied that their website had been hacked, and also

maintained that they had not confronted any indication that a data breach 43

had taken place. In between these denials and allegations it is the

personal information of the individuals which is at stake. Law is there to

protect Aadhaar but the implementation of same is questionable, storing

and publishing of the UID numbers and other information provided by

Aadhaar is punishable in chapter VII of Aadhaar Act. Later when

Aadhaar scandal was out and several state authorities and central

departments were found violating provisions of the Act: The UIDAI has

not initiated a single complaint against any of the bodies. It is only UIDAI

which has the power to initiate proceedings against the wrongdoer and 44not the individual who has been deceived.

The concept of Aadhaar can be understood with an easy example.

The right to information is there to make a government and its working

41 India Today Tech, "Aadhaar data of 130 millions leaked from govt websites: Report, Aadhaar data of 130 millions leaked from govt websites: Report: News", available at: http://indiatoday.intoday.in/technology/story/aadhaar-data-of-130-millions-bank-account-details-leaked-from-govt-websites-report/1/943632.html (last visited on August 28, 2017). 42 “Right to Privacy: Here's a Look at Four Major Data Breaches Since 2016”, NEWS18 available at: http://www.news18.com/news/india/right-to-privacy-four-major-data-breaches-since-2016-1499865.html (last visited on August 29, 2017). 43 Ibid.44 Supra note 8.


transparent to people, in same way Aadhaar is there to make people

transparent to the government which is against individual's privacy.

Many people are not comfortable in sharing their personal and sensitive

information whether it is health or financial condition with people or

different organizations; he or she may be rich or poor but has some

private boundaries which are not to be breached. To counter this flaw, the

Attorney General in the Supreme Court argued that Indians do not care

about privacy, regularly we find people travelling in trains sharing their

life histories. A major issue of consent and dissent is grossly neglected in

this vague argument. Publishing one's health condition's report could

cause social discomfort and self-consciousness. “An unauthorized

parting of the medical records of an individual which have been furnished

to a hospital will amount to an invasion of privacy,” the Supreme Court

said, qualifying its position, however, by saying that if such records are

collected by the state preserving the anonymity of individuals, “it could

legitimately assert a valid state interest in the preservation of public

health to design appropriate policy interventions on the basis of the data 45available to it”.

While dealing with the case of beef trading in one of the instances,

the court has made it clear that “privacy enables the individual to have a

choice of preferences on various facets of life including what and how

one will eat, the way one will dress, the faith one will espouse and a

myriad other matters on which autonomy and self-determination require 46a choice to be made within the privacy of the mind”. In order to obtain

the benefits of technological advancements in myriad of different fields

of our lives, we have already submitted our privacy to a great extent and

in our anxiety to advance to even greater levels, whether we will

surrender whatever is left of our liberty and whatever little are left of the

privacy we enjoy? The future depends on this question.

45 Krishn Kaushik, Ravish Tiwari, “A to Z of Privacy” The Indian Express, Aug. 29, 2017. 46 Ibid.


VI Conclusion

Right to privacy can be said as a right given to the Indian citizens by

the Indian citizens themselves. It is a fundamental and natural human

right since time immemorial. Making it explicit is just a connotation of

right to life and personal liberty enshrined under article 21 of the

Constitution of India. The landmark judgment of the nine judges' bench

of Supreme Court will no doubt have a series of significant effects on the

Indian perception of privacy. Aadhaar does form the base of

identification of Indian citizens in a unique way, so that they can be

distinguished from one another. The result which is being attempted to be

achieved by the government of India through Aadhaar scheme is also

remarkable but in doing so the government has to put a restrain upon

itself. Collection of biometric data which can be duplicated easily would

have its own dangerous results. The collection, in itself, is threatening the

very privacy of an ordinary citizen. It is becoming a way of mass

surveillance of Indian citizens by government of India. News reported in

different parts of India of leaking of private information on government

websites of Aadhaar card holders pinpoint to the fact that India is still

lagging behind the specifics of digitalization, a country still a mile away

from better technologies and stringent laws for data protection. In this

scenario, government has two options to choose, either to opt for doing

away with the Aadhaar scheme or formulating strong and stringent laws

for data protection to enable swift running and implementation of

Aadhaar scheme.


NEED OF RIGHT TO PROPERTY TO BE

RECONSIDERED BACK AS

A FUNDAMENTAL RIGHT*Yash Tandon

Abstract

Right to property was a fundamental right until the 44th amendment to the Constitution of India, from which it became the constitutional right and came under article 300A. Earlier right to property was a three-fold fundamental right under article 19(1) (f), article 31 (1) and article 31(2), but the 44th amendment came as a death knell for the right to property and both article 19(1) (f) and 31 were as a result deleted. The statement of objects and reason given by the legislature to the 44th amendment that considering that the fundamental rights are to be treated as almost sacred and any trifling with them is bound to create furore, and sought that it would be easier to demote it to the constitutional right as right to property is from the state of nature described by John Locke in his “Second Treatise of Government” and so it has become the object of controversy from time immemorial. But as right to property is from the period of Locke's state of nature it is regarded as one of the most important rights and that's why it was not completely deleted from the constitution. Right to property came with exceptions but that exceptions were mostly in the favour of the people which will be dealt in detail in this research paper and that's gives this right a special status, and that status in this research paper is of “implied fundamental right”

I Introduction

THE CONSTITUTION of India does not perceive property as a

great essential right. In the year 1977, the 44th amendment wiped out the

right to get, hold and discard property as a fundamental right. Be that as it

may, in another piece of the Constitution of India, article, 300A, was

embedded to certify that no individual should be denied of his property

spare by expert of law. The outcome is that the right to property as a

crucial right is presently substituted as a statutory right. The correction

extended the energy of the state to a suitable property for social welfare

purposes. This is one of the exemplary illustrations when the law has

been distorted so as to influence loot to look just and consecrated to

numerous still, small voices. Indian encounters and origination of

* nd 2 year student, B.A. LL.B., Tamil Nadu National Law School, Tiruchirappalli.

property and riches have an altogether different recorded premise than

that of western nations. The reality is the present arrangement of property

as we probably are aware emerges out of the curious advancements in

Europe in the seventeenth and eighteenth centuries and in this way its

encounters were all around not relevant. A still more financial range in

which the answer is both troublesome and essential is the meaning of

property rights. The idea of property as it has created over hundreds of

years and it has exemplified in our lawful codes, has to turn out to be so

much a piece of us that we tend to underestimate it, and neglect to

perceive the degree of which exactly what constitutes property and what

rights the responsibility for presents are intricate social manifestations 1instead of plainly obvious recommendations.

This is by all accounts the shrouded motivation behind why the right

to property is abruptly much challenged all through India today and why

the state is coming up out of the blue against gigantic protection from

sudden quarters in endeavouring to get arrive in India. The activity of the

state to affirm the eminent domain over backup asserts on the property

and the conflict which came about there from Singur, Nandigram and

different parts of India is unequivocally an indication of a conflict of

societies. To put in Samuel Huntington's words, the thoughts of the west

of improvement and advancement engendered by the present decision

first class and the old Indic thoughts which shape the perspectives of most 2of the general population.

The right to property under the Constitution of India attempted to

approach the topic of how to handle property and weights identifying

with it by endeavouring to adjust the right to property with the right to pay

for its securing through a flat out central ideal to property and afterward

adjusting the same with sensible limitations and including a further

essential right of remuneration in the event that the properties are gained

by the state. This was exemplified by article 19(1) (f), adjusted by article

19(5), what is more, the remuneration article in article 31. This was an

1 Milton Friedman, Capitalism and Freedom 45 (University of Chicago Publications, Chicago, 1962). 2 Samuel P. Huntington, Class of Civilization 33 (Simon & Schuster, NYC, 1996).

Need of Right to Property to be reconsidered back as a Fundamental Right | 81

intriguing advancement impacted by the British. Notwithstanding, when

the state understood that an outright property and the goals of the

individuals were not the same the governing body was along these lines

compelled to make the said right to property subject to social welfare in

the midst of changes to the Constitution of India. Articles 31-A, 31-B and

31-C, are the pointers of the change and the counter weight of the state

when it understood the inalienable issues in conceding an unmistakable

western style total essential appropriate to property (despite the fact that

it was adjusted by sensible limitations in the enthusiasm of general

society), exceptionally article 31-C, which out of the blue drew out the

social nature of property. It is another issue that the said arrangements

were abused, and what we are examining today, however, the

manhandling of the communist state in India is not the extension of the

present article and the articles are considered all over esteem as it were.

Every government has a right to take and appropriate the private

property belonging to individual citizen for public use. This power is

known as eminent domain. It is the offspring of political necessity. This

right rests upon the above said two maxims. Thus, property may be

needed and acquired under this power for government office, libraries,

slum clearance projects, public schools, parks, hospitals, highways, 3

telephone lines, colleges, universities, dams, drainages etc. The activity

of such power has been perceived in the statute of every single socialized 4nation as adapted by open need and instalment of remuneration.

However, this power is liable to limitations gave in the constitution.

In the United States of America, there are constraints on the energy of

eminent domain-

a) There must be a law approving the taking of property;

b) Property is taken for open utilize;

c) Remuneration ought to be paid for the property taken.

3 V.N.Shukla, The Constitution of India 144 (Eastern Book Company, Lucknow, th11 edn., 1969).

4 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.


II Meaning of property under the Constitution of India

The word ‘property’ as utilized as a part of article 31, the Supreme

Court has said it ought to be given liberal significance and ought to be

stretched out to everyone of those all around perceived sorts of intrigue 5

which have the badge or normal for property right. It includes both 6 7corporeal and incorporeal right. It includes money, contract, interest in

property e.g., interest of an allottee, licensees, mortgages or lessees of 8property. The Mahantship of a Hindu temple, and shareholders of

9interests in the company are recognizable interest in property. The right

10to receive pension is property. This describes the wide ambit of property

which is enunciated in various judgements of the hon'ble Supreme Court.

III Interpretation of right to property by the Indian Supreme

Court pre-1978 and post 1978 respectively

The primary loss of Nehru's energy was simply the Constitution of

India. The first amendment to the Constitution of India in 1951 added

article 31A (1), and 31B. The previous secured laws accommodating the

procurement by the state of any bequest or of any rights in them, or the

extinguishment or alteration of any such rights, from being pronounced

void because of part III of the constitution, i.e., the key rights. Article

31B, made the ninth schedule to the Constitution and shielded the laws

put inside from being pronounced void by virtue of part III.

The fourth amendment to the Constitution substituted clause (2) of

article 31, with the following:

No property might be mandatorily gained or demanded put

something aside for an open reason and spare by expert of a

law which accommodates pay for the property so procured or

ordered and either settles the measure of the pay or indicates

5 Hindu Religious Endowment v. Swamiyar, AIR 1954 SC 282.6 Dwaraka Das Srinivas v. Sholapur Co. Ltd, AIR 1958 SC 328.7 Bombay Dyeing Co v. State of Bombay, AIR 1958 SC 328.8 Supra note 5.9 Supra note 4.10 State of Kerala v. Padmanabhan Nair, (1985) 1 SCC 429.


the standards on which, and the way in which, the

remuneration is to be resolved and given and no such law

should be brought, being referred to, in any court on the

ground that the pay gave by that law isn't satisfactory.

11Sankari Prasad Singh v. Union of India and Anr

To abrogate the zamindari framework broadly pervasive in India,

some state government's instituted the Zamindari Abolition Act to gain

gigantic holding of land that lay with rich zamindars, and redistribute

them among the occupants. Be that as it may, the same was tested as being

unlawful and violative of the right to property that was incorporated into

the fundamental rights. The act was held illegal by the high court of Patna

however was maintained by the high courts of Allahabad and Nagpur;

whereby in the long run the issue was put under the watchful eye of the

Indian Supreme Court. Amidst this, the union government presented the

first amendment to the constitution, approving the zamindari abolition

laws and constraining the fundamental right to property. New article 31

A and B were incorporated into the Constitution to approve the censured

measures. The zamindars tested the main amendment in the Supreme

Court, expressing that it was illegal and invalid.

The apex court held that that the power of the parliament to amend

the Constitution of India including the fundamental rights is entailed in

article 368, and is not violative of the provisions of the Constitution. The

validity of the land reforms was upheld by the court.

12I.C. Golaknath v. State of Punjab

In 1967, the apex court struck down the seventeenth amendment to

the Constitution, which stated that:

given further that where any law makes any arrangement for

the securing by the state of any bequest and where any land

involved in that is held by a man under his own development,

11 AIR 1951 SC 458.12 AIR 1967 SC 1643.


it might not be legitimate for the state to obtain any part of

such land as is inside as far as possible pertinent to him under

any law for the present in compel or any building or structure

standing consequently or appurtenant thereto, unless the law

identifying with the procurement of such land, building or

structure, accommodates instalment of remuneration at a rate

which should not be not as much as the market esteem

thereof.

13Controversy relating to article 31C: Kesavananda Bharati case

With respect to article 31C, please note that the provision was

challenged under the celebrated decision of Keshavanand Bharati v.

State of Kerala. One of the provisions of article 31C stated that any

legislative declaration that a particular law was made to implement the

directive principles set out in article 39(b)-(c), shall not be open to

question in the court. This would mean that any such law could not be

challenged by way of a judicial review, which is a right that would

otherwise have been available.

The Supreme Court in this case had held that judicial review is one of

the essential features of the constitution. The legislature could not, by

passing a constitutional amendment dilute the right to seek judicial

review which is one of the essential features of the constitution.

Amid this period the Supreme Court was by and large of the view

that land changes should be maintained regardless of the possibility that 14they did entirely conflict against the right to property though the

Supreme Court was itself skeptical about the way the government went 15

about exercising its administrative power in this regard. The Supreme

Court was insistent that the administrative discretion to appropriate or

infringe property rights should be in accordance with law and cannot be 16 by mere fact. The court, however, truly conflicted with the communist

13 AIR 1973 SC 1461.14 Vasanlal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4.15 Raghubir Singh v. Court of Wards, AIR 1953 SC 373.16 Bishan Das v. State of Punjab, AIR 1961 SC 1570.


official amid the time of nationalization, when the court splendidly went

to bat for the right to property in however a constrained way against the 17over compasses of the communist state.

18 The court in the Bank Nationalisation case has clearly pointed out

the following two points:

a. The Constitution ensures the right to remuneration which is

identical in cash to the estimation of the property has been

obligatorily gained. This is the essential assurance. The law should

in this way give remuneration and to deciding pay pertinent

standards must be indicated: if the standards are definitely not 19pertinent a definitive esteem decided isn't compensation.

b. The Constitution ensures that the seize proprietor must be given the

esteem of his property (the sensible remuneration for the loss of the

property). That sensible remuneration must not be illusionary and

not come to by the use of an endeavour as a unit in the wake of

granting remuneration for a few things which go to make up the

endeavour and discarding essential things adds up to receiving an

unimportant rule in the assurance of the estimation of the endeavour 20

what's more, does not outfit pay to the dispossessed proprietor.

Post 1978 position of right to property

The Supreme Court, through its judgments, tried to disseminate

material assets for the benefit of everyone by limiting the amassing of 21wealth by some. The court, however, was additionally dependable in

conditioning down the abundances on the right to property and riches by 22

the communist state. During the time of liberalization, the Supreme

Court has endeavoured to return to reinterpret the arrangements which

offer assurance to one side to property in order to make the insurance

17 R.C Cooper v. Union of India, (1970)1 SCC 248.18 Ibid.19 Ibid.20 Ibid.21 State of Tamil Nadu v. Abu Kavur Bai, (1984) 1 SCC 515.22 K.R.Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226.


genuine what's more, not fanciful and weaken the claim of dissemination 23of wealth. However, this has been an incremental approach and

substantially more should be done to move and adjust back to the first in

the constitution. This implies the procurement of property isn't just

transient however to be acknowledged as substantial it must adjust to

profound rules and also the Indian originations perceive obviously that

however property can be delighted in which has not been procured

entirely as far as the law, it can't be called the genuine property of the

individual concerned. Property accordingly isn't simply an individual

right yet a development furthermore, some portion of social and 24

otherworldly order. The premise of origination of property in the social

orders of India isn't an inflexible and clear outline of cases having a place

with a person, be that as it may, is a whole of societal and individual

claims all of which require not be founded on clear individual legitimate

outline.

IV Recent approach of the Indian Supreme

Court to right to property

Soon after the abolition of the fundamental right to property, in Bhim 25Singh v. Union of India, the Supreme Court recognised the right to

property as a fundamental right. Without this fundamental right to

property, it took the response to the next fundamental right of equality

which is completely the idea of sensibility under article 14 for refuting

certain parts of the urban land roof enactment. Today, the need is felt to re-

establish the right to property as a fundamental right for securing, in any

event, the rudimentary and fundamental exclusive rights of the poor

Indian nationals against necessary land securing. Recently, the Supreme

Court, while opposing the well-established doctrine of adverse

possession, as against the rights of the genuine proprietor, watched that

23 Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705.24 J.M.Derret, Religion Law and State in India131-132 (Oxford University Press, New Delhi, 1999).25 (1981) 1 SCC 166.


The right to property is presently thought to be not just an established

right or statutory right yet, in addition, a human right.

In a very recent public interest litigation filed in the Supreme Court

which was still pending in the hon'ble court, it was held that the very

purpose for which the ideal to property consigned to a minor statutory

appropriate in the late 1970s isn't not any more important. It was

contended by Harish Salve, the educated advice for the solicitors that.

The right to property is made a statutory appropriate in 1978 to cancel

extensive land possessions with zamindars and rich and their

dissemination among landless labourers; having accomplished the very

reason behind the authoritative activity in the late 1970s, the

administration should now start crisp measures to put ideal to property

back in the key rights.

26 In P.T.Munichikkanna Reddy v. Revamma, the Supreme Court of

India has held that the right to property is not just a statutory right but is

also a human right. The Supreme Court appears to have approved the 27decision of the European Court of Human Rights in J.A.Pye v. UK

where the ECHR (European Convention on Human Rights) took the

concept of adverse possession very unkindly. In P.T.Munichikkanna

Reddy, the Supreme Court held that the right of property is now

considered to be not only a constitutional or statutory right but also a 28human right. In I.R.Coelho v. State of Tamil Nadu the apex court held

that even though an act is placed under the Ninth schedule by a

constitutional amendment, it would be open to challenge on the ground

that it destroys or abrogates the basic structure of the Constitution.

Therefore, setting any Act in the Ninth schedule additionally by

established change would not spare the Act in the event that it disregards

the piece of the Constitution.

In the event that legal proclamation of the Supreme Court was to build up

this pattern of ideal to property is a piece of human rights and in this

26 (2007) 6 SCC 59.27 AIR 2007 SC 1753.28 2007(2) SCR 980; 2007(10) SCC 448; 2007(3) SCC 349.


manner, and assuming control or securing would require full repayment

in the light of article 21, read with articles 14 , and 19. It would definitely

be a great achievement. The fundamental conclusion of this would be that

the right to remuneration for procurement of property would be a human

right and along these lines it can be enveloped under the fundamental

structure of the Constitution. The wheel would doubtlessly have turned

more than full hover since the whole tussle between the lawmaking body

and the judiciary started instantly after the initiation of the Constitution as

to the refusal of the state to pay full remuneration for procurement of

property, which may around then have been essential however it is

completely unjustified.

V Right to property with demonetisation aspect

The Constitution of India vows a right to property. Article 300A,

states that no individual should be denied of his property spare by the

specialist of law, that is, by an ordinance or an Act of parliament. The

organization's inability to issue an ordinance controls the commitment

owed to the overall public. Thus, it has been claimed that the

demonstration of denying them the right to their property impermissibly

harms article 300A. It is pertinently contended that limits on withdrawal

of cash from bank accounts and exchange of the notes are contrary to the

mandate of article 300A. The Act of refusing to let people withdraw their

own money in cash serves as an unqualified restriction on their right to

property, and, by placing limits on such an exchange, the government has 29extinguished the right entirely.

Right to property was given the widest connotation in Madan 30

Mohan Pathak v. Union of India & Others wherein the Supreme Court

stated that property includes ownership, estates and interests in corporeal

things, and also rights such as trade-marks, copyrights, patents and even

rights in personam capable of transfer or transmission, such as debts.

Thus, it was held that public debts are property and the extinguishment of

29 nd D. D Basu, Introduction to the Constitution of India 140 (Lexis Nexis, New Delhi, 22 edn., 2015).30 1978 AIR 803.


such an obligation, the fulfilment of which is the duty of the state,

amounts to compulsory procurement of that debt. The Constitution of

India vows a right to property. Article 300A, states that no individual

should be denied of his property spare by the specialist of law, that is, by

an ordinance or an Act of parliament. The organization's inability to issue

an ordinance controls the commitment owed to the overall public. Thus,

it has been claimed that the demonstration of denying them the right to 31their property impermissibly harms article 300A.

VI The degradation of right to property from

fundamental to constitutional right

The right to property was a three fold right:

1. Article 19(1)(f), stated that every person had a right to acquire any

property by lawful means, hold it as his own and dispose of it freely,

limited only by reasonable restrictions to serve the exigencies of

public welfare any other restrictions that may be imposed by the

state to protect interests of scheduled tribes.

2. Article 31(1), provided that no person shall be deprived of his right

to property except by the authority of law.

3. Article 31(2), provided that if the state wants to acquire the private

property of an individual or to requisition (that is to take over the

property of a temporary period), it could do so only if such

acquisition or requisition is for a public purpose and that

compensation would be payable to the owner.th

Prior to the deletion under the 44 Amendment Act, several

amendments were made by successive Congress governments eroding

these rights. The following are some of the significant changes:

1. The adequacy of compensation payable on acquisition or requisition

could not be questioned in a court of law.

2. The obligation of the government to pay compensation was watered

down by addition of exceptions to such requirements. These

exceptions included if the government acquired property for estates

31 Supra note 3.


or intermediate rights (article 31A), or where land was acquired

under certain specified enactments (article 31B) and acquisitions

aimed towards implementation of the directive principle set out in

article 39(b)(c), which was aimed at social redistribution of wealth

(article 31C).

The 44th amendment and abolition of article 31 to 31C

The 44th amendment Act rang the death knell for the right to

property and both article 19(1)(f) and 31 were as a result removed.

Whenever a law if passed or amended, it is usual for the legislature to

issue a statement of objects and reasons to explain the reason for the

proposed law or amendment.

The statement of objects and reasons to the 44th Amendment Act

provides in this regard the following:

1. In view of the special position sought to be given to fundamental

rights, the right to property ceased to be a fundamental right and

became only a legal right. Necessary amendments for this purpose

are being made to article 19 and article 31, is being deleted. It was,

however, ensured that the removal of property from the list of

fundamental rights would not affect the right of minorities to

establish and administer educational institutions of their choice.

2. Similarly, the right of persons holding land for personal cultivation

and within the ceiling limit to receive compensation at the market

value was not affected.

3. Property, while ceasing to be a fundamental right, would, however,

be given express recognition as a legal right, provision being made

that no person shall be deprived of his property save in accordance

with law.

Instead, article 300A, was added that provides that no person shall

be deprived of his property except by authority of law.

The effect of the amendment


As the right to property is no longer a fundamental right but only a

legal right, a person does not have a right to file a writ in the Supreme

Court under article 32, for infringement of such right. He can either file a

suit against the government or file a writ under article 226, to the high

court. This dilutes a person's remedies on deprivation of his right to

property.

Article 300A

People are not to be denied property except by procedure established th

by law. The 44 Amendment Act which deleted article 19(1) (f), and

presented this article brought out the accompanying essential changes:

a) In perspective of the exceptional position looked to be given to

major rights, the right to the property, which has been the event for

more than one amendment of the Constitution, would stop to be a

central right and turn out to be just a lawful right.

b) Essential revisions for this object were made to article 19, and article

31, was deleted. It was, however, be guaranteed that the expulsion of

property from the rundown of basic rights would not influence the

rights of the minorities to build up and manage instructive

organizations of their decision.

c) Likewise, the right of people holding land for individual

development and inside roof the cut-off to get showcase

remuneration at the market esteem won't be influenced.

Principle under article 300 A

The Constitution (after 44th amendment) does not explicitly present

the right to gain, hold and discard property. If a man has procured and

held the property he cannot be denied of it without any special provision

of law. The security given to private property under article 300A, is

accessible to all people who hold property in India, natives and in

addition outsiders and normal people and lawful people, for example,

corporate bodies and so on. The law approving ownership of property 32

must be passed by the best possible expert i.e. by parliament. This


implies (a) the law must be passed by a skilful council, and (b) it must not

influence antagonistically any of the rights, major or protected – in a way

not justified by the constitution. For this benefit, the legitimacy of such

law will be inspected in the light of the prior choices of the Supreme

Court.

The law approving hardship of property must be reasonable and just.

The approach of the Supreme Court in Maneka Gandhi's case, the term

'law' in article 21, will be the controlling star to the Supreme Court for

deciding the legitimacy of a law under article 300A. Article 300A, is free

from the dominance of the 'directive principles of state policy' and it

would afford greater protection to the right to property than what would 33have been in article 31.

Importance of property whether or not a fundamental right

Although after the with amendment, maybe property is no more a

basic right, certain property rights still hold the character of or connection

to, basic rights. Examples like article 30(1) (a), gives that any obligatory

securing of property having a place with an instructive organization of a

religious or a semantic minority, the remuneration payable should be, for

example, would not confine or repeal the right ensured to that minority

under article 30(1), article 31B, make legitimate certain acts and controls

relating to arrive changes which are recorded in the ninth calendar,

despite any opposite judgment, announce request of any court.

Article 31C, gives insurance to the laws offering impact to certain 34mandate standards.

VII Conclusion

The original Constitution of India had defended the right to property,

perceived the same under part the III of the constitution. Be that as it may,

32 H.M. Jain, “The Forty-fourth Amendment and the Right to Property” Journal of Constitutional and Parliamentary Studies 355 (1979).33 M. Hidayatulla, Constitutional Law of India 368 (The Bar Council of India Trust in Association, 1986).34 T.K.Tope, Constitutional Law of India 1777-78 (Eastern Book Company, Lucknow, 1982).


not long after the Constitution of India came into compelling a protracted

fight initiated between the people who were looked to be denied of their

property and the governing body and official until its last summit. At last

by the forty-fourth protected alteration ideal to property as initially

visualized by the 1950 Constitution was erased and just a little part of the

right was held in article 300A, as a established right. The entire beginning

of the argument about the right to property was the unwillingness of the

lawmaking body and official to pay full remuneration or full advertise an

incentive for the property gained.

The right to property is a basic civil right which is recognised way 35

back from the centuries. No place on the planet majority rule

government perceived with discretionary control. India being a majority

rule nation could not practice its sovereign power in subjective way. In

this manner, administrative obstruction may happen as seizure of

property rights of people when open intrigue warrants. Confiscation of

property must be subjected to a few conditions and restrictions and it

ought not to be as per the impulses and fancies of the legislature. The

moral premise and states of seizure will be the basic state of famous area

control. Subsequently, even after the evacuation of article 31, through

and through, there must be avocation for the impedance with singular

property appropriate by the government. Also right to property is linked

with article 21, of the Constitution of India as right to life includes right to

live with personal liberty, so right to property is indirectly linked with one

of the fundamental rights and so it should be reconsidered back as the

fundamental right because in India all the fundamental rights are to be

read together and we have to take in cognisance each and every right

which comes into picture and not confine to that particular right on which

the subsisting matter is concerned. So, according to this doctrine, right to

property should be considered back as fundamental right.

Also with the aforementioned judgments and reasoning put forth

35 John Locke, Second Treatise of Civil Government (Awnsham Churchill, England, 1948).


right to property should be considered back as the fundamental right

because the Constitution was framed by an extraordinary body of men, a

body of men whose combined virtues and talents have seldom if ever

been equalled in this country. They possessed that rare quality of mind,

which unites theory and practice. They understood the unique conditions

of the country and the enduring needs and aspirations of the people, and

they adapted their principles to the character and genius of the nation.

They visualised a society in which every citizen should be the owner of

some property not only as a means of sustenance but also as a zone of

security from tyranny and economic oppression and they put that right

above the vote of transient majority.


AADHAAR, RIGHT TO PRIVACY AND THE

PRIVACY TRADE-OFFS: FOR GREATER BENEFITS

AND NATIONAL INTERESTS*Aishwarya Agarwal

Abstract

As per Marc Rotenberg, right to privacy is “the rights and responsibilities associated with the collection and use of personal information”. Privacy of an individual is compromised for benefit of larger section of society like for national security, public interest and many more. Since its initiation, Aadhaar has been criticised as a project which violates privacy of people. In light of these, the article shall introduce the concept of privacy and the development of right to privacy in India. Moving further, light will be shed on Justice K.S. Puttaswamy v. Union of India along with a discussion on how Aadhaar identity cards violate an individual's privacy. Finally, certain trade-offs in privacy shall be dealt with.

I Introduction

ONE OF the most discussed and worrying aspect of this age is the

subject of privacy. Over recent years the subject has been widely

canvassed not only amongst lawyers and journalists but also among

general public. People have cared about privacy since time immemorial.

As per the National Research Council of United States of America,

privacy includes reference to behavioral, financial, medical, biometric,

consumer, and biographical types of information available about an

individual whether primary or derived from analysis. Privacy is

important to protect:

1 people's interests in competitive situations;

someone, who may want to keep some aspect of his life or behavior 2private;

3 someone, who may want his medical records to be kept private; or

* rd 3 year student, B.A. LL.B. (Hons.), Hidayatullah National Law University, Raipur.1 James Rachels, “Why Privacy is Important” 4 Philosophy and Pub. Aff. 323 (1975).2 Ibid.3 Interview with Dr. Malcolm Todd, President of the A.M.A., Miami Herald, Oct. 26, 1973.

people, who apply for credit or for large amounts of insurance or

jobs of certain types and are often investigated, and result is a fat file 4of information about them.

The concept of right to privacy emerged and developed, in almost all

nations over the globe in varied dimensions. Ancient Roman law and the

Code of Hammurabi protected the home against intrusion. Freedom from

government intrusion was a central privacy issue, at the time of the

revolutionary war in America. During early 1500s, in Britain, the idea

that citizen should be free from certain kinds of intrusive government

searches developed. In India, the concept of privacy can be traced out in

the ancient text of Hindus but the right to privacy has somewhat been a 5

vague concept.

II Development of right to privacy in India

In modern India, the issue of right to privacy was initially discussed

in Constituent Assembly debate where K.S. Karimuddin moved an

amendment on the lines of the Constitution of United States of America,

where B.R. Ambedkar gave it only reserved support and which failed to

get the incorporation as the right in the Constitution of India. However,

since then, the issue has become a matter of great debate and conflict and 6has gained more momentum after the issue of leakage of Aadhaar details

of citizens. The development of concept of right to privacy has been

traced below:

7 In M.P. Sharma v. Satish Chandra, Supreme Court on the issue of

'power of search and seizure' held that they cannot bring privacy as the

fundament right as it is something alien to the Constitution of India and

4 Supra note 1 at 324.5 As per the Hitopadesh, certain matters relating to sex, worship and family should not be disclosed and so were protected from disclosure. 6 Aadhaar is a 12-digit biometric identification number of a person in India and was born to plug leakages in the delivery of state benefits.7 1954 AIR 300.

Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 97

8constitution makers did not bother about the right to privacy. The Indian

judiciary has forwarded the same perspective in various other cases also. 9In Kharak Singh Case, K.R. Suraj v. The Excise Inspector

10Parappanangadi and State Rep. by Inspector of Police v. N.M.T. Joy

11Immaculate, the apex court affirmed that right to privacy cannot use

against the power of search seizure. In Maneka Gandhi v. Union of 12India, the Supreme Court adopted wide interpretation of right to life and

included the right to privacy into to the scope of right to life under article 13

21. In Unni Krishnan v. State of Andhra Pradesh, court mentioned the

twelve meaning of right to life; and right to privacy was one among them. 14

In Auto Shankar case, the Supreme Court held that “the petitioners have

a right to publish what they allege to be the autobiography or life story of

Auto Shankar insofar as it appears from the public records, even without

his consent or authorization.” However, they may be invading his right to

privacy, if they go beyond that and publish his life story.

Similarly, in People's Union for Civil Liberties (PUCL) v. Union of 15India, the Supreme Court held that “conversations on the telephone are

often of an intimate and confidential character and telephone-

conversation is a part of modern man's life” and if right to privacy can be

claimed or has been infringed in the given case depends upon the facts of

that case.

16 In Mr. 'X' v. Hospital 'Z' it was decided that:

when the right to privacy clashes with the other fundamental

right i.e., right of privacy one person and right to lead a

healthy life of another (society), then the right which would

advance public morality or public interest would alone be

enforced.8 Supra note 7.9 Kharak Singh v. The State of U. P. and Others, 1963 AIR 1295.10 2000 (8) SCALE 64.11 AIR 2004 SC 2282.12 1978 AIR 597.13 1993 AIR 2178.14 R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264.15 [2013] 12 SCR 283.16 Appeal (civil) 4641 of 1998.


Recently, a nine-judge bench of the Supreme Court headed by the

then Chief Justice JS Khehar, ruled on August 24, 2017, in Justice KS 17Puttaswamy & Ors v. Union of India that the right to privacy is a

fundamental right for Indian citizens under article 21, part III,

Constitution of India. Hence, no legislation passed by the central

government shall unduly violate it but reasonable restrictions can be put

for national security though violative of one's right to privacy. After

observation of the so discussed cases one can say that right to privacy is

well related to individual's personal liberty and can be recognized as a

right to life. However, reasonable restrictions can be put for national 18

security which may violate one's right to privacy.

III Aadhar: Compromising individual rights

for national interests

The Aadhaar project is the world's largest national identity scheme,

launched by the Government of India, which seeks to collect biometric

and demographic data of residents and store these in a centralised 19database. To date, about 1.1 billion users have enrolled in the system.

The objective of the Unique Identification Authority of India

(UIDAI), constituted in January 2009, is a simple one: “to issue a unique

identity (UID) number for every resident in the country. The impact of

this initiative, however, goes to the heart of our development agenda 20today.” India had long lacked the identification infrastructure that is in

place in other countries which acted as biggest barriers that the poor face

in accessing welfare and social services effectively, as it increases costs

and effort of identification as well as the risk of duplicates. The key role of

this UID number is that of an enabler - a number that helps governments

design better welfare programmes, enables residents to access resources

more easily wherever they live, and allows agencies and programmes

such as the National Rural Employment Guarantee Scheme (NREGS),

17 2017 SCC Online SC 996.18 Ibid.19 Unique Identification Authority of India, 2017.20 Ibid.


the Public Distribution System (PDS) and the Sarva Shiksha Abhiyan

(SSA) to deliver benefits and services effectively and transparently.

Possible ways of breach of privacy

As discussed, Aadhaar seeks to collect biometric and demographic

data of residents, an individual the privacy can be compromised in

various ways in a setting such as in Aadhaar. Correlation of identities

across domains may become possible to track individual's activities

across multiple domains of service (AUAs) using their global Aadhaar

IDs which are valid across these domains.

Identification of a person without his consent by unauthorised use of

his biometrics can be easily carried out. Such violations may occur by

inappropriate matching of iris scans or facial photographs or fingerprint

or stored in the Aadhaar database, or using the demographic data to

identify people not only without their consent but also beyond legal

provisions. Identity theft of an individual through leakage of biometric

and demographic data from central repository or enrolment device.

Illegal tracking or surveillance of an individual (without proper

authorisation or legal sanction) using the authentic and identification

records and trails in the Aadhaar database, or in one or more AUA's

databases. However, though there are serious privacy concerns at

present, Aadhaar can be made safe from a technology perspective with 21due diligence. It is well said:

If you put a key under the mat for the cops, a burglar can find

it, too. Criminals are using every technology tool at their

disposal to hack into people's accounts. If they know there's a

key hidden somewhere, they won't stop until they find it.

The legal frameworks need to be more specific and significant

strengthening. The effectiveness of biometric identification and to what

extent are the biometric features required are remaining important

21 Tim Cook, Apple's CEO, On privacy and security, EPIC's Champions of Freedom, available at: https://epic.org/2015/06/tim-cook-backs-privacy-crypto-.html&s=1&hl=en-IN (last visited on August 20, 2017).


questions that require further study. Finally, the Aadhaar project requires

informed and comprehensive policy debates, covering all angles,

realising its full effectiveness without causing the kind of privacy

concerns and disruptions that have been reported. With these, the

Aadhaar-UIDAI will succeed towards benefit of nation, though

compromising an individual's privacy.

IV Case analysis: Justice K.S. Puttaswamy v.

Union of India & Ors.

The pending case of Justice K.S. Puttaswamy v. Union of India & 22

Ors. was the first in the series of cases challenging the Aadhaar scheme.

The case, along with fifteen other matters tagged along with it, is

currently pending before the apex court, after being referred to the

Constitution Bench in 2015. In 2017, the entire bench of Supreme Court

of India has given 547 pages judgment on right to privacy in India. Justice

D.Y. Chandrachud, while delivering the main judgment, on behalf of the

Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and Justice S. 23Abdul Nazeer has held:

Life and personal liberty are inalienable rights. These are

rights which are inseparable from a dignified human

existence. The dignity of the individual, equality between

human beings and the quest for liberty are the foundational

pillars of the Constitution of India…Life and personal liberty

are not creations of the constitution. These rights are

recognised by the Constitution as inhering in each individual

as an intrinsic and inseparable part of the human element

which dwells within.

Justices Chelameswar, Bobde, Sapre and Kaul have also agreed with

Justice Chandrachud's judgment. Just as the Supreme Court has

interpreted other fundamental rights in the past and included the rights to

education; to livelihood; to food, water, and shelter; against custodial

22 Supra note 17.23 Ibid.


violence; reproductive rights, among many others, it has now interpreted

them to include a right to privacy also. As with any fundamental right,

lawyers and courts will interpret whether the right is infringed, and, if so,

whether a limitation like “reasonable restrictions” or “procedure

established by law” applies. So is the case for right to privacy also. Hence

reasonable restrictions can be put on an individual's right to privacy. This

case poses much value to decide the fate of Aadhaar.

Though the judgment itself do not intend to affect the Aadhaar

(Targeted Delivery of Financial and Other Subsidies, Benefits and

Services) Act, 2016 but it will do so. Since personal information such as

biometric information is collected and processed by the government

under this Act, it shall have to pass the basic tests of articles 21 and 14 of 24the Constitution, mentioned in the judgment.

The observations of the court in the judgment throw light on some of

the questions surrounding the Aadhaar challenge. They can be stated as:

The fulfillment of welfare objectives would be a legitimate aim

towards which the right to privacy could be infringed

(notwithstanding that the other conditions of a reasonable restriction 25

are met).

However, the furtherance of welfare objectives should not take 26

precedence over right to privacy.

The primacy of individual consent (in relation to one's data /

information) provides possible context to the discussion on the 27mandatory and permanent nature of Aadhaar.

V Privacy trade-off for national interests

Privacy is a complex issue as multiple interests are at stake because

24 The tests are: (i) The need for an existence of a law; (ii) The law should not be arbitrary; and (iii) The infringement of the right by such law should be proportional for achieving a legitimate state aim.25 Supra note 22 at para 154-155.26 Ibid.27 Ibid.


the information has much value to anyone either at the moment of 28collection or in the future. It is said:

once a civilization has made distinction between the outer

and the inner man; the life of the soul and the life of the body;

public and private rights; and society and solitude, it

becomes impossible to avoid the idea of privacy by whatever

name it may be called- the idea of a private space in which

man may become and remain 'himself'.

The tension between individual privacy and national interests has

been an enduring force all over the globe, its origins long predating the

advent of new media, information revolution, new circumstances, new

technologies, and new societal contexts that have not only sharply

intensified the conflict but also changed its focus. Advancement of

technology has given the government instruments for watching people

and collecting information about them. It is now simple and easier to

collect information by location tracking, data mining, wire-tapping, spy

satellites, X-ray devices, bugging, and more. Nowhere else is the tension

between “it's none of your business” and “what have you got to hide” so 29easily seen. The privacy-national interest debate profoundly affects

how government activities be regulated. However, major problem with

the debate is that privacy often loses to national interest. It is to be noted

that right to privacy does not prohibit any publication of matter which is 30of public or general interest. Many believe they must trade privacy in

order to be more secure while others are making powerful arguments to

encourage people to accept this tradeoff.

Some of the most complex and the controversial tradeoffs involve a

tradeoff of the interests of individuals against the interests of collective

society. It is interesting to note that this also goes well with the Jeremy

28 Dorothy J. Glancy, “The Invention of the Right to Privacy” 21 ALR 2 (1979).29 James Waldo, et. al., Engaging Privacy and Information Technology in a Digital Age, Committee on Privacy in the Information Age 251 (National Research Council, 2007).30 Samuel Warren and Louis D. Brandeis, “The Right to Privacy” 1 Kingston L. Rev. 102 (1968).


31Bentham's utilitarianism; the greatest happiness of the greatest number,

where happiness is measured in terms of pleasure and pain. The principle

aims at greater good of society. On these lines, privacy can be traded-off

for national interests and security. In other words, right to privacy of one

individual can be compromised for benefit (which is happiness as per the

principle) of more number of people. Tradeoff in privacy for national

interest includes:

Video surveillance, to deter crime, pose a privacy risk when male

camera operators use cameras to focus on women's private parts,

Cameras monitoring the movement of ordinary citizens in public

places for increasing public safety or collection of data on peoples'

political activities or nation's security,

Knowledge of the identities of individuals by law enforcement

authorities, interested in reading about terrorism or bomb-making,

Geographic tracking of cell-phone locations for enabling

emergency location.

Installing spy satellites to keep an eye over the enemies,

Availability of public government on the internet for increasing the

openness of government,

Librarians and many state legislatures, concerned about ensuring an

unfettered, free and unmonitored flow of information to library

patrons, may jeopardize individuals' reading habits and making it

potentially the subject of government investigation, monitoring, etc.

Other tradeoffs may be:

Inquiry and record of personal financial information of an individual

by a bank for evaluating creditworthiness for a bank loan.

31 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Batoche Books, Ontario, 1781).


For emergency care of an individual, considering his privately kept

medical records without consent.

Inquiry and record of personal information of an individual by a

retailer about purchases of various products for future marketing of

products to the individual.

Medical data of insurers obtained through third parties for deciding

on rates or availability of health insurance for an individual.

However, the fact that tradeoffs are sometimes significant should not

be taken to convey that tradeoffs are always necessary. In some instances,

careful planning and design may minimize the tradeoffs. So, a design

decision for a system to discard data immediately after it has been used 32

for the purpose thereby, mitigating privacy tradeoffs.

VI Conclusion

The right to privacy is a multi-dimensional concept. In modern

society, right to privacy has been recognised both in the eye of the law and 33

in common parlance. The privacy concerns are often grounded in

information that may be used for purposes other than a stated purpose.

Indeed, in the examples discussed in previous pages, another possible

and less benign purpose might easily be envisioned and thus might

change entirely one's framing of a privacy issue. In India, right to privacy

is dealt in article 21 of the Constitution as one of the right under right to

life. However, reasonable restrictions can be put for national security 34

which may violate one's right to privacy. So, an individual's privacy can

be traded-off for national interest. On these lines, individual's personal

data use for Aadhaar is also valid. Perhaps, considerations of law

enforcement and national security that contrast with privacy are the best

known examples of the general tradeoffs in the privacy debate.

32 Shiv Shankar Singh, “Privacy and Data Protection in India” 5 PL 1 (2012).33 Ibid.34 Supra note 17.


* nd 2 year student, B.A. LL.B., NALSAR University of Law, Hyderabad.1 Gautam Bhatia, “The Equality of Entry”, The Hindu, Sept. 8, 2016, available at: http://www.thehindu.com/todays-paper/tp-opinion/The-equality-of-entry/article14628391.ece (last visited October 22, 2017).

SABARIMALA CONTROVERSY AND

EQUALITY FOR WOMEN: QUESTION OF

CONSTITUTIONALITY OF THE BAN*Saumya Srivastava

Abstract

Religion sanctioned gender inequality has been prevalent in the Indian social structure from time immemorial. It most clearly manifests itself in the bar on entry of women in various temples and mosques like Sabarimala shrine, Haji Ali Dargah and the Shani Shignapur temple. Recent judgements on the above-mentioned cases have declared the ban on women's entry as void. The Sabarimala case still awaits judgement. The focal point of the paper is the Sabarimala controversy. The paper traces the origin of the controversy and temple's traditions. The paper further discusses the Kerala High Court judgement of 1991 which declared the ban as constitutional. The paper then highlights the constitutional questions that present themselves before the apex court in the present petition by the Young Indian Lawyers Association thereby delving onto the question of constitutional morality, horizontal application of fundamental rights and the irregularities in the 'essential religious practice' test.

I Introduction

AMBEDKAR, WHEN asked what made him so passionate about

the entry of Dalits in the temples gave a very short and crisp reply when

he said that “the issue is not entry but equality.” Ambedkar was not

bothered by the fact that he was indifferent to religious matters or that a

mere permission to Dalits to enter the temple premises would in no way

end the oppression of Dalits. What was crucial for him was to smash the

instruments through which an unequal society fortifies its hierarchies; in 1the above case, denying equal access to all in religious places. The

unequal access to religious places has been carried on over the years and

was recently brought under judicial scrutiny in the face of Sabarimala ban

on the entry of women of reproductive age.

From time immemorial, women have been discriminated on several

pretexts with the accreditation of religion. Across all religions the

sexuality of women is feared and this fear manifests itself in the form of

various religious practices. Instances of not allowing women to hold key

positions in churches or denying entry to women in certain shrines are not

unknown to the society. Such fear of women's sexuality still persists even

in the twenty first century. But women, in this century have become

vigilant enough to fight for their rights and get their due. The notion that a

woman is impure while menstruating took shape at the time when

civilization was being transformed into a patriarchal social structure. It

was the commencement of male dominance and subsequent subduing of 2

women in various forms.

The Sabarimala controversy that is going on for a decade now

speaks volume about gender inequality that persists in the Indian society.

The Indian Young Lawyers Association (IYLA) filed a Public Interest

Litigation (PIL) before the Supreme Court of India against the ban on the

entry of women in the age group of ten to fifty to the sanctum sanctorum 3of the Sabarimala temple. The decision on this case has been reserved by

the Supreme Court and will be referred to a constitutional bench. Till now

a three-judge bench of the Supreme Court has been hearing the case and

the proceedings hint towards another landmark judgement allowing the

entry of women to the sanctum sanctorum of the temple. The Supreme 4

Court, through its landmark judgement on the Haji Ali Dargah case and

on the right to privacy case in Justice K.S. Puttaswami(Retd.) v. Union of 5India has laid down progressive precedents and this may pave way to yet

another progressive judgement in the Sabarimala case.

II Sabarimala tradition: emergence of the controversy

The Sabarimala temple, located in the state of Kerala, is a temple

2 Trishala Singh, “Women's Right to Access: Seeking Gender Equality in Places of Worship,” 31 AEIRJ 12 (2016), available at: http://www.imrfjournals.in/pdf/MATHS/arts-education/AEIRJ-31/24.pdf (last visited on October 13, 2017).3 Ibid.4 Noorjehan Saa Niaz v. State of Maharashtra, AIR 2017 (NOC 45) 18.5 (2017) 10 SCC 1.

Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 107

dedicated to Lord Ayyappa and is a very famous seat of worship for the

followers of Hindu faith. The temple, unlike various other temples is

even open to the people of other religion. The only restriction that is

placed by the temple is on the entry of women of the age of ten to the age

of fifty. The journey that the pilgrims have to take up before reaching the

sanctum sanctorum of the temple is quite hard and involves a process of

forty-one days. During these forty-one days the pilgrims have to pass

through dense forests to reach the hilltop where the temple is situated.

The pilgrims are mandated to undergo a process of purification of mind

and soul by observing 'votive abstinence' for the above-mentioned

period. The deity Lord Ayyappa is considered a celibate and therefore

even the pilgrims are obligated to observe celibacy for the period of

journey to the temple. The women of the age group ten to fifty are

considered impure because of the biological process of menstruation that 6

they undergo.

The Kerala High Court judgement, 1991

In 1991, the Kerala High Court for the first time dealt with the

question of the validity of the ban on the entry of women in reproductive

age in the case of S. Mahendran v. The Secretary, Travancore Devasom 7

Board, Thiruvananthampuram. The petitioner contended that certain

women were going against the custom and offering prayers at the

Sabarimala temple. He sought from the court appropriate directions to

the state government of Kerala as well as the Devaswom Board to strictly

implement the ban. The three issues before the court then were as

follows:

Whether women of the age ten to fifty can be allowed to enter the

sanctum sanctorum of the Sabarimala temple?

Whether such a restriction is violative of the rights provided by the

Constitution of India under articles 14, 15 and 25?

6 Shashikala Gurpur and Shashikant Hajare, “Tradition – Modernity Polarities and Human Rights of Women: Tracking Judicial Responses in India,” 43 AIJRH 21 available at: http://www.iasir.net (last visited on October 13, 2017).7 AIR 1991 Ker 25.


Does the court have the authority to give directions to the

Devaswom Board and to the state government to strictly implement

the ban on the entry of women?

The Kerala High Court in its judgement upheld the validity of the

ban and held that the restriction imposed on women is a matter of religion

which is effectively covered by the Constitution of India under article

26(b). A religious denomination has complete autonomy to decide what

customs or rituals are essential to it according to the doctrines of its own

religion under the mentioned article of the Constitution of India and no

outside authority could interfere with the rights of such a religious

denomination. The court also opined that the ban was not violative of

article 15 of the Constitution of India as the restriction was imposed not

on the 'class of women' as a whole but only onto women of a particular

age group. The ban was also justified on the basis that the deity was

celibate and not even a minute deviation should be caused to the celibacy 8

of the deity by young women.

The present petition before the Supreme Court of India

In 2006, Ms. Jayamala, an actress, claimed that she once while

shooting for a film happened to enter the sanctum sanctorum of the

Sabarimala temple. After her declaration, a particular section of the

society demanded for a legal action against the actress. In lieu of this

controversy the Young Indian Lawyers Association along with five

women lawyers filed a Public Interest Litigation in the Supreme Court

challenging the restriction on the entry of women in the Sabarimala

shrine. Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation

of entry) Rules, 1965 was particularly challenged in the petition. This

particular rule restricts the entry of women to Sabarimala at such time

when they by either custom or by usage are prohibited to enter any public

place of worship. The validity of this rule has been called to question. The

matter was being adjudged by Justice S.B. Sinha and Justice Sirpurkar in

2008 after which they referred the case to a three-judge bench. The

8 Supra note 6.


judgement on the case has been reserved by the Supreme Court. In a

surprising turn of events, the Kerala government came out in support for

the petition and said that denying the entry to women is unfair and has

also filed an affidavit for the same in the Supreme Court.

III Constitutional questions before Supreme Court

Validity of Rule 3(b) of the Kerala Hindu Places of Worship

(Authorisation of entry) Rules, 1965

The first argument of the petitioners in the present petition before the

Supreme Court is that Rule 3(b) of the Act is ultra vires as section 3 of the

Kerala Hindu Places of Worship (Authorisation of entry) Rules, 1965

which says that, notwithstanding anything contained in any law in force

at any time, custom or usage, all places of public worship open to Hindus

shall be open to all classes, sections of Hindu and no class or section of

Hindu shall be denied entry to such a public place of worship.

However, in this instance, the temple authorities have themselves

restricted women of reproductive age from entering the temple under

Rule 3(b). The Kerala High Court had justified the rule saying that the

women of the said age group did not form a “class of Hindus” and so the

rule is valid. This reasoning of the Honourable High Court appears

incorrect as the word “class” denotes a group of people sharing similar

characteristics and the women of the reproductive age group have been

barred from entering the shrine because of the common biological

process of menstruation that all the women undergo and which might

affect the celibacy of Lord Ayyappa. In the light of above facts, it is

difficult to understand how the women of the said age do not form a

“class” of Hindus. The petitioners have also argued on the same lines 9before the Supreme Court.

Looking at the ban from the perspective of article 14 of the

Constitution of India, the ban appears to be in contradiction with the twin

9 Gautam Bhatia, “Sabrimala: Key Constitutional Issues”, Apr. 13, 2016, available at: http://www.legallyindia.com/blogs/sabrimala-key-constitutional-issues (last visited on October 14, 2017).


test laid down by the article for any classification to be valid. For any

classification to be valid it should be first based on intelligible differentia,

i.e., there should be some common feature separating one group from the

rest and second such differentia should have direct nexus to the objective

of the Act or the provision concerned. The factor of differentia in the

present case is the biological process of menstruation that women

undergo but not men. And the objective of the Act is to allow all sections

of Hindus to enter places of public worship and reduce any sort of

discrimination in this manner. By not allowing women of reproductive

age from entering the premises of the temple, the temple authorities are

encouraging gender inequality which is directly against the objectives of

the Act. Thus, the differentia used has no nexus to the objective of the 10Act.

The Supreme Court seems to disapprove the differentia used in the

ban and has asked the temple authorities that if menstruation is the

measure of purity of women then what is the instrument or method to

measure purity of men. The court remarked that the ban is clearly on the

basis of gender. The responses of the Supreme Court reflect an inclination

to grant gender equality in the present case but the case is still pending 11

before the court and awaits its judgement.

Arguments pertaining to article 25(1) of the Constitution of India

The foundation of the petitioner's case is the article 25(1) of the

Constitution of India. Article 25(1) gives the right to all the citizens “to

profess, practice and propagate their religion save as to public order, 12

morality and health.” The petitioners have argued that worshiping at the

Sabarimala temple is part of their “practicing” their religion and thus is

constitutionally protected under the Constitution. The Supreme Court

10 Editorial, “Sabarimala and Women's Entry: Need for Ban on the Ban,” 14 NUJSLR 10, available at: www.ssrn.com (last visited on October 15, 2017).11 Supra note 10.12 The Constitution of India, 1950, art. 25(1).


should ideally not find a flaw to this argument but the precedent of the 13Ismail Faruqui v. Union of India shows that the position is a bit

complicated. The hon'ble court had laid down in the case that the right to

worship is not available at every place and any place as long as

worshiping can be carried out effectively. The court also added that

worshiping at a particular place shall be protected by the Constitution

under article 25(1) only when it forms an integral part of the worshiping

itself. In Hinduism, different temples are dedicated to different deities

and therefore worshiping at the particular temple does form an integral 14

part of worshiping itself. In the present case as Sabarimala is

specifically dedicated to Lord Ayyappa so that the limitation given by

Ismail Faruqui case would not be applicable.

Arguments pertaining to article 26(b) of the Constitution of India

The foundation of respondent's case is the argument pertaining to

article 26(b) of the Constitution of India. Article 26(b) gives “the right to

every religious denomination to manage its own affairs in the matter of 16religion save as to public order, morality and health”. The three

essentials pertaining to the right conferred under the article are: i) public

morality, order and health should in no way be affected ii) the institution

should be a religious 'denomination' iii) affairs carried out should pertain

to matters of religion. The petitioners are not contending the fact that

Devaswom Board is a denomination or that the matters are pertaining to

religion. Their main contention is that restriction on women is against

“morality” as mentioned in the article. The petitioners are arguing that

“morality” as mentioned in article 26(b) should be construed as

constitutional morality. Gender justice forms an integral part of

constitutional morality and therefore the Devaswom Board cannot claim 15 that the ban is protected by their rights under the article.

IV Horizontal application of fundamental rights

The petitioners have challenged the ban to be violative of articles 14,

15 and 25. However the fundamental rights bestowed by the Constitution

16 The Constitution of India, 1950, art. 26(b)


under the mentioned articles are only available against the state. In the

present case it is well established that the Devaswom Board is not a state.

For the petitioners to claim the rights under the articles 14, 15 and 25

against the Devaswom Board it would be essential for the Supreme Court

to follow the horizontal application of fundamental rights. The Supreme

Court in various cases has taken recourse to this approach, the most 17recent being the Haji Ali Dargah case. In this case, the Supreme Court

interpreted the duty of the state to not to discriminate under article 14 and

15 to include positive action on part of the state to stop other people from

discrimination. The court applied the fundamental rights horizontally

instead of going by the traditional vertical approach. It is important to

note that there are two kinds of approach in horizontal application of

fundamental rights. One is the direct application wherein the

fundamental rights are directly enforced against the state. Second being

the indirect approach wherein the state is called upon to take steps against 18

the individual to prevent discrimination.

In the Sabarimala case the constitutionality of the Rule 3(b) is called

into question. Thus, it becomes necessary for the Supreme Court to

follow the approach of indirect horizontal application of fundamental

rights. Thus, the private acts of the Board will not be challenged rather the

law on which they are placing reliance shall be called in question. By

declaring the rule 3(b) as unconstitutional the source of authority of their

action shall be demolished thereby ensuring that the Devaswom Board 19does not act in a discriminatory manner.

V Question of constitutional morality

As already discussed the petitioners are claiming that the morality

referred in article 26(b) should be construed as constitutional morality.

The ban encourages gender inequality which is against constitutional

morality and therefore the Devaswom Board cannot justify the ban on the

17 Supra note 4.18 Supra note 10.19 Ibid.


basis of article 26(b). There are certain complications in this argument.

The petitioners are basing their argument of gender justice being

essential part of constitutional morality incorporated in article 14 and 15

which are directed against the state. Even if the Supreme Court applies

the fundamental rights horizontally, article 15(2) mandates equal access

to all in public“shops, hotels, restaurants and places of public 20 entertainment”, clearly excluding the places of worship. Also, article

25(2)(b) which says that “all places of worship of Hindus should be open 21

to all sections of Hindus” is written in a language to convey that the state

is permitted to make laws to provide equal access to all in places of

worship but is not obligated to do so. This means that the state is not under

an obligation to make a law that gives equal access to both men and

women to the temple. Thus, it would imply that constitutional morality 22does not endorse gender equality at places of worship.

Another complication with the constitutional morality question is

that articles 25 to 30 of the Constitution of India clearly manifest the

vision of the Constitution to protect the rights of the groups to cultural

autonomy. Not just article 26(b) but article 29 also empowers the

minorities with the right to protect their culture, script and language.

Thus, it cannot be said with authority that the principle of gender equality 23

overrides the rights of cultural autonomy of groups. One argument that

could be made by the petitioners is that the Constitution is primarily

against any form of discrimination made either by the state or by private

individuals in blocking the access of the people to public goods both

material as well as symbolic. Denying entry to a temple to a section of

people, in the present case to the women of fertile age, is against the equal

moral membership principle of a community. Restriction to entry on the

factor of menstruation would be unconstitutional without the slightest

question if done by state and since the temple is central to any community

20 The Constitution of India, 1950, art. 15(2).21 Ibid.22 Supra note 9.23 Ibid.24 Ibid.


24such a restriction should be similarly unconstitutional.

VI Essential religious practices test

The Supreme Court of India invented 'essential religious practice

test' as early as 1957 to accommodate the competing claims of

communities, state and the individuals in matters of religious practices.

This test is used by the apex court to give constitutional sanction to

seemingly religious practices of a particular religion if in the view of the

court such a practice is 'integral' to the said religion. Initially the court

held that this question shall be determined by taking an internal point of

view and by looking into the doctrines of the concerned religion. Though,

in later years the court started taking an interventionist stance, attempting

to make wide-ranging changes in the religious practices and tried to 25mould religion on rationalistic lines.

The Devaswom Board has justified the restriction of women to the

shrine as being sanctioned by 'custom' and 'usage.' The Supreme Court

has called upon the Board to establish that such a custom form an

essential religious practice of the faith. The controversy with the

'essential religious practice' approach has been in debate for long. In the

opinion of the scholars this approach gives wide powers to the judiciary

to decide which practice would form an essential practice of the religion

and which would not. The scholars have critiqued this approach also

because it does not originate from the Constitution rather is an invention

of the Supreme Court itself. The test is slightly based on Dr. Ambedkar's

speech in the Constituent Assembly debates. The issue with the test is that 26

it is highly subjective and gives the judges huge discretionary powers.

The subjectivity is evident from the judgement of M Ismail Faruqui v.

25 Gautam Bhatia, “The Equality of Entry”, The Hindu, Sept. 8, 2016, available at: http://www.thehindu.com/todays-paper/tp-opinion/The-equality-of-entry/article14628391.ece (last visited on October 22, 2017).26 Supra note 6.27 Supra note 10.28 AIR 1958 SC 731.


27Union of India where the court held that going to mosque to worship is

not an essential practice of Islam. In Mohd. Hanif Quareshi v. State of 28Bihar, the court held that sacrificing a cow on the day of Bakr'iddid not

form an essential religious practice of Islam.

Flaws in the essential religious practice test

The first flaw in the approach is that the courts lack the authority to

declare a particular practice as essential or non-essential to the religion.

The test does not find any place in the Constitution and is merely an

intervention of the courts by interpreting article 25 of the Constitution.

Second, the test is subject to varied interpretations of different religions

by varied judges. Justice B.P. Banerjee once rightly remarked that if

judges were given the power to decide the essentiality of any religious

practice then the religious practices would become what the courts want 29

it to be. Third, there is no set mechanism to find out whether a particular

practice is essential to a religion or not. The courts largely depend on the

religious scriptures to determine this fact. However, at times the customs

of a particular religion may not be in alignment with the scriptures and 30thus the outcome of the test might be arbitrary.

In the opinion of the author the Supreme Court should refrain from

following the 'essential religious practice' test to determine the validity of

the ban in the Sabarimala case because the outcome may be favourable

but the reasoning behind it could be flawed thereby giving a bad

precedent.

VII Conclusion

The proceedings in the Supreme Court on the Sabarimala case hint

towards declaring the ban on entry of women as unconstitutional but

nothing can be said until the final judgement is given by the apex court.

Courts through their recent judgements have been instrumental in

furthering gender equality and social justice. The ambit of fundamental

29 Acharya Jagadishwarananda Avadhuta v. Commr. of Police, AIR 1990 Cal 336.30 Supra note 9.


rights is also being increased by the courts as can be seen from the recent

ruling of the Supreme Court in the right to privacy case in Justice K.S. 31Puttaswami (Retd.) v. Union of India where the apex court declared

right to life as being inclusive of right to privacy under article 21. The

Sabarimala case could be another landmark ruling in the judicial history

of India. It is a golden opportunity for the Supreme Court to propagate

gender equality in India and also lay a strong precedent with better

application of fundamental rights using the indirect horizontal approach.

The paper highlighted the origin of the Sabarimala controversy

giving insights into the Kerala High Court judgement of 1991. The

present constitutional questions before the Supreme Court have been laid

down in the paper to give a clear picture of the proceedings that have been

going on for long. The author hopes that the apex court lifts the ban on the

entry of women by following the horizontal application of fundamental

rights and not using the 'essential religious practice' test that has

narrowed down the religious practices to be what courts want it to be.

31 Supra note 5.


ARTICLE 19-THE MOST DIVERSE

FUNDAMENTAL RIGHT*Gopika. A. Aryad

Abstract

Speech is God's gift to mankind. Through speech, a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. Being one of the world's largest democracies in the world, through article 19(1) (a) in Part III of the Constitution of India, our country provides each individual the freedom into express themselves without any interference. When one analyses the history of our country, it is only through the free expression of people's thoughts and opinions, that the democratic form of government functions smoothly in our country. Recognizing the fact that article 19 not only provides freedom of speech and expression, this article deals in detail about the dynamic aspects of this fundamental right.

I Introduction

FREE SPEECH is live wire of the democracy and is integral to the

expansion and fulfilment of individual personality. Iver Jennings said,

“Without freedom of speech, the appeal to reason which is the basis of 1

democracy cannot be made”. Only if the citizens of a country actively

take part in the political set-up by putting forward their opinions and

voicing about their concerns can a democracy run effectively.

Freedom of expression means the right to express one's convictions

and opinions freely, by word of mouth, writing, printing, picture or any 2other manner, and every citizen in our country must be given the liberty

to express their views be it through cinema, art or words. The freedom of

speech and expression not only includes the freedom to hold opinion, to 3seek, to receive and impart, but also provides an individual with the

freedom of movement. But every individual must exercise their freedom;

as well allow others to freely express themselves. How important is

* th 4 year student, B.A. LL.B., Sree Narayana Guru College of Legal Studies, Kollam, Kerala.1 Madhabhusi Sridhar, The Law of Expression: An Analytical Commentary on Law

nd for Media (Asia Law House, Hyderabad, 2 edn., 2007).2 All India Anna DMK v. K Govindam Kutty, 1996 AIHC 4509.3 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.

expression for citizens in our country should not remain just as a topic of

debate for news channels when an issue relating to a person's freedom of

speech and expression comes up. Rather it should be celebrated by each

citizen productively.

II International perspective of freedom of expression

Freedom of speech and expression is guaranteed by several

constitutions in the world, through various provisions like the first and

fourteenth amendments to the Constitution of United States, section 18

(1)(e)(f)(g) of the Constitution of Sri Lanka, and 50 and 51 of the

Constitution of the USSR .

Not only constitutions but international conventions have also stated

the freedom of speech and expression as an integral fundamental right to

be provided to citizens. Articles 13, 20, 23, 29 of the Universal

Declaration of Human Rights, 1948, article 22 of the International

Covenant on Civil and Political Rights, 1966, article 11 of the European

Convention on Human Rights, 1950, and articles 6 and 12 of the

International Covenant on Economic, Social and Cultural Rights, 1966

suggest that countries must ensure free expression of opinions by their

citizens, free movement of individuals, and must provide them with

freedom of expression.

Article 10 of the European Convention on Human Rights, 1950

provides that:

(1) Everyone has the right to freedom of expression. This right shall

include freedom to hold opinion, to receive and impart information

and ideas without interference by the public authority and regardless

of the frontiers. This article shall not prevent states from requiring

the licensing of broadcasting, television or cinema enterprise.

(2) The exercise of this freedom, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by the law and are

necessary in a democratic society, in the interest of national security,

territorial integrity or public safety, for the prevention of the disorder

Article 19-The Most Diverse Fundamental Right | 119

or crime, for the protection of health and morals, for the protection of

reputation or rights of the others, for preventing the disclosure of

information received in confidence or for maintaining the authority

and impartially of the judiciary.

Thus, all these international conventions recognise the importance

of expression, association and movement in an individual's life.

III Freedom of speech and expression is an integral

part of a democratic country

4 Freedom of speech is the bulwark of democratic government. In

5Maneka Gandhi v. Union of India , Bhagwati J. has emphasized on the

significance of the freedom of speech & expression in these words:

Democracy is based essentially on free debate and open

discussion, for that is the only corrective of government

action in a democratic set up. If democracy means

government of the people by the people, it is obvious that

every citizen must be entitled to participate in the democratic

process and in order to enable him to intelligently exercise

his rights of making a choice, free & general discussion of

public matters is absolutely essential.

The freedom is essential for the proper functioning of the democratic

process. The freedom of speech and expression is regarded as the first

condition of liberty. It occupies a preferred position in the hierarchy of

liberties giving succour and protection to all other liberties. It has been

truly said that it is the mother of all other liberties. Shastri J.observed in 6

Romesh Thappar case that “freedom of speech and press lay at the

foundation of all democratic organisations, for without free political

discussion, no public education, so essential for the proper functioning of

the process of popular Government, is possible.”

4 th M.P.Jain, Constitution of Indiaal Law (Kamal Law House, Calcutta, 5 edn., 2003). 5 AIR 1978 SC 597.6 Romesh Thappar v. State of Madras , AIR 1950 SC 124.


The democracy is a government by the people and flourishes via

open discussion. The democracy can neither work nor prosper unless 7people go out to share their views. It is the best way to find a trust model

of anything, since it is only through it that the widest possible range of

ideas can circulate. It is the only vehicle of political disclosure essential to

democracy. Political democracy, the foundation of which is free election ,

based on appeal to reason, cannot function in a society where there is no 8freedom of speech. It is thus indispensable for the operation of the

9democratic system, which is based on free debate and open discussion,

10for that it is the only corrective of government action, and one which

11envisages changes in the composition of legislatures and governments.

It is of no doubt that our Constitution as well as our judicial

precedents have upheld the importance of expression in our country. But,

the circumstances surrounding us makes us ponder whether this liberty of

expression is being enjoyed freely. It is important and essential for the

people in this country to understand that it is an artist's or a director's

freedom to portray his story in the way he wants. Threatening those artists

or banning those works are violation of the Constitution of our country.

Each individual is different, their versions of history or portrayal of god

men or women may be different, and we need to embrace this diversity

among us for the benefit of our country.

Freedom of speech and expression includes the right to convey ideas

Freedom of speech means the freedom to speak so as to be heard by

others, and therefore, to convey one's ideas to others. The very idea of

freedom of expression necessarily connotes that what one has a right to 12

express, may be communicated to others. In Secretary Ministry of

7 S Rangarajan v. P Jagjivan Ram, AIR1999 SC 2334.8 Tiger Muthiah v. State of Tamil Nadu, 2000 (1) CTC 1.8 Bennett Coleman v. Union of India, AIR 1973 SC 106(138); Namboothiripad v. 9 Nambiar, AIR 1970 SC 2015; Ram v. State of Bihar, AIR 1975 SC 223.10 Maneka Gandhi v. Union of India , AIR 1978 SC 597.11 Sakal Newspapers v. Union of India, AIR 1962 SC 305.12 All India Bank Employees Association v. National Industrial Tribunal, AIR 1962 (2) SC 17; Nahhera Gopal v. State, (2001) 4 CTC 423(Mad); Tiger Muthiah v. State of Tamil Nadu,(2000) 1 MLJ 516.


Information and Broadcasting, Govt of India v. Cricket Association of 13Bengal, after citing article 10 of the European Convention on Human

Rights, it was observed that the freedom of speech and expression

includes the right to acquire information and to disseminate it. The

freedom of speech and expression includes liberty to propagate not one's

views only, it includes the right to propagate or publish the views of other 14people. Thus, banning an author just because they has written about a

sensitive or religious issue, or banning a film just because it portrays a

certain historic character in a peculiar way, hampers the artistic license to

convey their ideas and thoughts to the public.

Freedom of speech and expression includes people's right to know

and the right to access information

The right to know relating to public affairs has been held as a basic 15

right. The right to receive information may be deduced as a counterpart

of the right to impart information, which is an ingredient of the freedom 16

of expression guaranteed by article19(a). In People's Union for Civil 17Liberties, the Supreme Court dealt with this aspect of the freedom

elaborately. The right of citizens to obtain information on matters, 18relating to public acts flows from article 19(1)(a). Securing information

on the basic details concerning the candidates contesting the elections to

parliament or the state legislature promotes the freedom of expression

and therefore the right to information forms an integral part of article

19(1)(a). The Right to Information Act, 2005 entitles every citizen to

have access to information controlled by public authorities. Under the

Act, it is obligatory upon the authority to provide information and

maintain records consistent with its operational needs. The object of the

Act is to promote openness, transparency and accountability in 19administration. In State of Uttar Pradesh v. Raj Narain, it was held that

13 AIR 1995 SC 1236. 14 Srinivas v. State of Madras, AIR 1931 Mad.15 R.P.Ltd. v. Indian Express, AIR 1989 SC 190; Indian Express v. Union of India, AIR 1986 SC 515.16 Nakkera Gopal v. State of Tamil Nadu, (2001) 4 CTC 423(Mad).17 People's Union for Civil Liberties v. Union of India , AIR 2004 SC 1442.18 PUCL v. Union of India, AIR 2003 SC 2363.19 AIR 1975 SC 865 at 884.


article 19(1)(a) not only guarantees freedom of speech and expression, it

also ensures and comprehends the right of the citizens to know, the right

to receive information regarding matters of public concern. In Dinesh 20

Trivedi, M.P. v. Union of India, it was observed that, the right to

freedom of information in modern constitutional democracies includes

the right of citizens to know about the affairs of the government which,

having been elected by them, seek to formulate sound policies of

governance aimed at their welfare.

Even though our constitutional makers have analysed the

importance of citizens to get access to details of public offices and

officers, the public offices in our country are still way behind in

implementing them effectively. A large part of our population is still

unaware of the existence of such a right, while those who know and

invoke them often end up being ill-treated by the persons holding public

posts. A hand-in-hand approach of both the citizens and the people who

hold government posts must be there for the betterment of this country.

IV The freedom of speech and expression under article 19 (1) (a) is

not absolute and is subject to restrictions under article 19(2)

It is necessary to maintain and preserve freedom of speech and

expression in a democracy; however it is necessary to place some

restrictions on this freedom for the maintenance of social order, because

no freedom can be absolute or completely unrestricted. Accordingly,

under article 19(2) of the Constitution of India, the state may make a law

imposing “reasonable restrictions” on the exercise of the right to freedom

of speech and expression “in the interest of” the public on the following

grounds;

Security of state: Security of state is of vital importance and a

government must have power to impose restriction on the activity

affecting it. Under article 19(2), reasonable restrictions can be

imposed on freedom of speech and expression in the interest of

security of state. However the term “security” is very crucial one.

20 (1997) 4 SCC 306.


The term “security of state” refers only to serious and aggravated

forms of public order e.g. rebellion, waging war against the state,

insurrection and not ordinary breaches of public order and public

safety, e.g. unlawful assembly, riot, affray. Thus speeches or

expression on the part of an individual, which incite to or encourage

the commission of violent crimes, such as murder, are matters,

which would undermine the security of state.

Friendly relations with foreign states: In the present globalised

world, a country has to maintain good and friendly relationship with

other countries. Something which has potential to affect such

relationship should be checked by government. Keeping this thing

in mind, this ground was added by the Constitution (First

Amendment) Act, 1951. The object behind the provision is to

prohibit unrestrained malicious propaganda against a foreign

friendly state, which may jeopardize the maintenance of good

relations between India, and that state.

Public Order: The expression 'public order' is synonymous with 21public peace, safety, and tranquillity. To illustrate, the state may

restrict the use of public streets or the purpose of exercising

freedom. Anything that disturbs public tranquility or public peace 22 23

disturbs public order. Thus, communal disturbance and strikes 24

promoted with the sole object of causing unrest among workmen

are offences against public order. Public order implies absence of

violence and an orderly state of affairs in which citizens can 25peacefully pursue their normal avocation of life. Public order

26includes public safety. Public safety means the safety of the

community from the external and internal dangers. Thus creating

internal disorder or rebellion would affect public order and public

21 Supdt., Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633.22 Om Prakash Emperor v. , AIR 1972 SC 1656.23 Noor Mohammad Rex v. , AIR 1949 All 120.24 Om Prakash Emperor v. , AIR 1948 Nag 199.25 Basudev v. Rex, AIR 1949 All 513(FB).26 Romesh Thapper v. State of Madras, AIR 1950 SC 124.


27 safety. Under article 19(2), a restriction can be imposed in 'the

interest of' public order. The expression 'in the interest of' gives a

greater leeway to the legislature to curtail freedom of speech and

expression, for a law penalising activities having a tendency to

cause, and not actually causing public disorder, may be valid as

being in 'the interests of public order'. In a landmark decision in 28Bharat Kumar, a full Bench of the Kerala High Court has declared

bandhs organised by political parties from time to time as

unconstitutional, being violative of the fundamental rights of the

people. The court refused to accept it as an exercise of the freedom of

speech and expression by the concerned party calling for the bandh.

When a bandh is called, people are expected not to travel, not to

carry on their trade, not to attend to their work .

Decency or morality: The way to express something or to say

something should be decent one. It should not affect the morality of

the society adversely. Our Constitution has taken care of this view

and inserted decency and morality as a ground. The words 'morality

or decency' are words of wide meaning. Sections 292 to 294 of the

Indian Penal Code provide instances of restrictions on the freedom

of speech and expression in the interest of decency or morality.

These sections prohibit the sale or distribution or exhibition of

obscene words, etc. in public places. No fixed standard is laid down

till now as to what is moral and indecent. In R.Y. Prabhoo v. 29

P.K.Kunte, the court held that the words decency and morality

includes every current standards of behavior or propriety.

Contempt of court: In a democratic country judiciary plays a very

important role. In such situation, it becomes essential to respect such

institution and its order. Thus, restriction on the freedom of speech

and expression can be imposed if it exceeds the reasonable and fair

limit and amounts to contempt of court.

27 Brij Bhushan v. State of Delhi, AIR 1950 SC 129.28 Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291.29 AIR 1996 SC 1113.


Defamation: One's freedom, be it of any type, must not affect the

reputation or status another person. A person is known by his

reputation more than his wealth or anything else. The Constitution

considers it as ground to put restriction on freedom of speech.

Basically, a statement, which injures a man's reputation, amounts to

defamation. Defamation consists in exposing a man to hatred,

ridicule, or contempt.

Incitement to an offence: This ground was also added by the

Constitution (First Amendment) Act, 1951. Obviously, freedom of

speech and expression cannot confer a right to incite people to

commit offence. The word 'offence' is defined as any act or omission

made punishable by law.

Sovereignty and integrity of India: To maintain sovereignty and

integrity of a state is prime duty of government. Taking this into

account, freedom of speech and expression can be restricted so as

not to permit anyone to challenge sovereignty or to permit any one to

preach something which will result in threat to integrity of the

country.

From above analysis, it is evident that grounds contained in article

19(2) show that they are all concerned with national interest or the

interest of the society. The first set of grounds i.e. the sovereignty and

integrity of India, the security of the state, friendly relations with foreign

States and public order are all grounds referable to national interest,

whereas, the second set of grounds i.e. decency, morality, contempt of

court, defamation and incitement to an offence are all concerned with the

interest of the society.

Even though these restrictions are only to be exercised by the

government, we often see people taking law into hands protesting and

harassing the artistic license and freedom of other citizens, thus creating

chaos in the society. We belong to a country where our spiritual values

respect all religious equally, let's not allow a set of religious fanatics to

hamper our freedom of expression by making all issues religiously


sensitive, and making us live in an atmosphere where our liberty of

speech itself will be curtailed.

V Conclusion

Expression through speech is one of the basic guarantees provided

by civil society. However, in the modern world right to freedom of speech

and expression is not limited to express ones' view through words but it

also includes circulating one's views in writing or through audiovisual

instrumentalities, through advertisements and through any other

communication channel. It also comprises of right to information,

freedom of press, etc. It is a right to express and self realization. Two big

democracies of world i.e. America and India have remarkably protected

this right. As far as India is concerned, this important right is mentioned

in article 19(1)(a), which falls in fundamental rights category. Indian

courts have always placed a broad interpretation on the value and content

of article 19(1)(a), making it subjective only to the restrictions

permissible under article 19(2).

Freedom of speech and expression is indeed the most important of

all freedoms. However, today, this right is being routinely suppressed

under the guise of morality and decency or public order. Even a slight

criticism of a public leader or past king causes the political parties to

involve in damage of public property. Any book that talks about problems

in a religion is banned in the name of public order. It is extremely

unfortunate that the executive, instead of the upholding peoples' right to

speech and expression by preventing unscrupulous element from hurting

the author, is more interested in stifling the voice by banning their works.

Being the citizens of one of the largest democracies in the world, this

freedom of speech and expression must be exercised to bring about

radical changes and reforms in our society. We must understand and

propagate the notion that we are a country where we celebrate unity in

diversity and every person must be given their freedom to portray or

depict or express their opinions and thoughts and let us celebrate the

individuality of this incredible country .


NEED FOR EXTENDING THE BASIC

STRUCTURE DOCTRINE: JUDICIAL REVIEW

OF ELECTION DISPUTES*Harsh Vardhan Tiwari

**Bharat

Abstract

The main objective of article 329(b) of the Constitution of India is to impel the jurisdiction of all courts in respect to election disputes and aimed at establishing a separate and independent body to try such cases, apparently prescribing the manner, grounds, and stage at which challenge to an election could be urged. The non-obstante clause unambiguously suggests that those grounds cannot be discussed in any other manner and at any other point before any other court. The paper discusses at length, how gradually courts have bypassed the blanket ban on litigative challenges put forth by article 329(b), and have extended their jurisdiction, original as well as appellate, on election disputes which were also one of the major concern behind the abandonment of election tribunals. The paper critically analyses intent of the Supreme Court behind such active interpretation of the key constitutional provision, and as to why the long-term ramifications of such approach shall be considered while exercising such extraordinary jurisdiction by the courts.

I Introduction

DEMOCRACY IS one of the basic inalienable features of the

Constitution of India and forms part of the basic structure of the 1

Constitution. In a democratic polity, 'election' is the mechanism devised

to mirror the true wishes and the will of the people in the matter of

choosing their political manager and their representatives who are

supposed to echo their views and represent their interest in the 2legislature. Free, fair, reasonable and unbiased elections are the

assurance of a democratic nation. The word “election” used in Part XV of

the Constitution implies, the entire process of election commencing with

* th 5 year student, B.A. LL.B, Rajiv Gandhi National University of Law, Punjab.** st 1 year student, B.A. LL.B, Rajiv Gandhi National University of Law, Punjab.1 Kesavnanda Bharati v. State of Kerala, AIR 1973 SC 1461.2 Azhar Hussain v. Rajeev Gandhi, AIR 1986 SC 1253.

the instance of notification and terminating with the declaration of 3election result in favour of the candidate.

Elections in a nation represent the sovereignty of the people and aim

to provide legitimacy to the authority of the rulers i.e. government.

Therefore, free and fair elections are necessary for the success of any 4democratic institution. An effective mechanism is sine qua non for

having such election. For conducting, holding and completing the

democratic process, a potential law based upon requirements of the

society tested on the touchstone of the experience of times is concededly

of paramount importance. A balanced judicial approach in implementing 5

the laws relating to the franchise is mandatory.

According to article 329(b) of the Constitution of India, no election

either to the house of parliament or to the house of the legislature of a state

shall be called upon in any court, but in a specialised election tribunal

established for the purpose. For article 329(a), the orders made by the

Delimitation Commission regarding delimitation of constituencies and 6published in the Official Gazette, could not be agitated in a court of law.

The words notwithstanding anything in this constitution', makes it clear

that this clause overrides everything else in the Constitution and thus has 7

an overreaching effect both on the election and constitutional law. The 8

Supreme Court in Durga Shankar v. Raghuraj Singh observed:

The 'non-obstante' clause with which article 329 of the

Constitution begins and upon which the respondent's counsel

lays so much stress, debars us, as it debars any other court in

the land, to entertain a suit or a proceeding calling in question

any election to the parliament or the state legislature. It is the

3 N.P. Punnuswami v. Returning Ofcer, AIR 1952 SC 64; Hari Vishnu Kamath v. Ahmad Isaque, AIR 1955 SC 233; N.B. Khare v. Election Commissioner, AIR 1957 SC 694; Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.4 Sumandeep Kaur, “Electoral Reforms in India: Proactive Role of Election Commission” XLVI (49) Mainstream (2008).5 VS Achuthanandan v. PJ Francis and Anr, (1999) 2 LRI 200.6 th M.P. Jain, Constitution of Indiaal Law 819 (Wadhwa, Nagpur, 5 edn., 2007).7 Meghraj Kothari v. Delimitation Commission, AIR 1967 SC 669.8 Durga Shankar v. Raghuraj Singh, AIR 1981 SC 231.

Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 129

election tribunal alone that can decide such disputes and the

proceeding has to be initiated by an election petition and in

such a manner as may be provided by a statute.

However, the remedy in respect of election matters was held not to

be construed as extinguished by virtue of article 329(b), but it has to be

delayed till the election ends. Article 329(b) is a blanket ban on legal

proceedings to challenge electoral steps taken by the electoral machinery

for carrying forward the process of election and the only remedy to

challenge such steps on the basis of illegality, is an election petition to be 9

presented after the elections are over. Having regard to the important

functions which the legislatures have to perform in democratic countries,

it has always been recognised to be a matter of prime importance that

elections should be concluded as early as possible according to time

schedule, and all controversial matters and all disputes arising out of

elections should be postponed till after the elections are over, so that the 10

election proceedings may not be unduly retarded or protracted.

According to Representation of People Act, 1951, before the

Representation of People (Second Amendment) Act, 1956 (27 of 1956)

provided a separate election tribunal for looking into the disputes arising

from the elections. Section 81(1) of the Representation of People Act,

1951 provided that election petition cannot be filed in a court before the

result of the election. Section 105 of the Representation of People Act,

1951 provided no scope for judicial review of the decisions of these

election tribunals. The main objective of this enlisted provision was to

conduct the elections in due time and keep the election disputes out of the

purview of courts. It provided election tribunal so as to expedite the

resolutions relating to election law. However, judiciary through its

corpus of judicial review and judicial activism expanded its scope of

jurisdiction and has made an attempt to restructure the meaning of article

329(b).

9 Anand Ballabh Kafaltiya, Democracy and Election Laws 83 (Deep and Deep Publications, 2003).10 Supra note 3.


The paper delves into how courts have widened their horizon to

include both original and appellate jurisdiction on disputes relating to

election laws, and how article 226 has been so broadly interpreted so as to

include those petitions which were not earlier under its jurisdiction. It

also endeavours to show how Supreme Court interpreted the provisions

of the Constitution to remove restraints on election petition from being

entertained in the courts.

II Adding life to article 329(b): Judicial interpretation

The Supreme Court has tried to find a way to establish a balance

between the sweeping powers of the high court under article 226 of

Constitution of India and the limitations put on its power by virtue of

article 329(b) through its various landmark judgments on election laws. 11In N.P. Ponnuswami v. The Returning Ofcer, Namakkal Constituency,

the plaintiff filed a petition for writ of certiorari in the Madras High Court

under article but the court refused to intervene, holding that article 329(b)

barred its jurisdiction to interfere in electoral matters and decided that

high court can't interfere in the electoral matters till the election is over.

The Supreme Court also supported the decision and enunciated the

constitutional position and mandate that court cannot interrupt the

electoral process till it is completed and the results are duly declared. The

Hon'ble Court established certain principles:

The question now arises whether the law of elections in this

country contemplates that there should be two attacks on

matters connected with election proceedings, one while they

are going on by invoking the extraordinary jurisdiction of the

high court under article 226 of the Constitution, and another

after they have been completed by means of an election

petition. In my opinion, to affirm such a position contrary to

the scheme of part XV of the Constitution and the

Representation of People Act. Any matter which has the

effect of vitiating an election should be brought up only at the

11 Supra note 3.


appropriate stage in an appropriate manner before a special

tribunal and should not be brought up at an intermediate stage

before any court. If the grounds on which an election can be

called in question could be raised at an earlier stage, and

errors, if any, are rectified, there will be no meaning in

enacting a provision like article 329(b) and in setting up a

special tribunal. Any other meaning ascribed to the words

used in the article would lead to anomalies, which the

Constitution could not have contemplated, one of them being

that conflicting views may be expressed by high court at the

pre-polling stage and by the election tribunal, which is to be

an independent body, at the stage when the matter is brought

up before it.

The principles enunciated in N.P. Ponnuswami are still held

sacrosanct and has been reiterated in a number of cases. The view was

further elucidated in Mohinder Singh Gill v. Chief Election 12Commissioner and Ors. In this case, a constitutional bench expanded

the bar on courts to issue writs challenging re-poll as it is coupled with the

election. This case established article 329(b) as a blanket ban on litigative

challenges, in the courts, to electoral steps taken by the Election

Commission and its officers for carrying forward the process of election 13

to its culmination in the formal declaration of results. It also interpreted

the term 'election' and gave it a wider interpretation so as to denote period

from the presidential announcement calling upon the voters to elect and

climaxing in the final declaration of the returned candidate. The plenary

bar of article 329(b) rests on the peremptory urgency of prompt

engineering of the whole election process without intermediate

interruptions by way of legal proceedings challenging the steps and 14stages in between the commencement and the conclusion.

12 AIR 1978 SC 851.13 Ibid.14 Ibid.


Electoral rolls, one of the most indispensable aspects of elections,

have also witnessed conflicting views as to whether they form part of

elections under article 329(b) or not. The Hon'ble Supreme Court held,

the preparation, revision and correction of electoral rolls as a stage 15 16

anterior to the election. Stepping further in Indrajit Barua, the

Supreme Court held that where an election has been held on the basis of

an electoral roll, issue of the validity of the election cannot be raised on

the ground that the electoral roll was defective. However, where it is

alleged in the election petition that any name has been included in or

deleted from an electoral roll after the last date of making nominations

when the roll becomes final under section 23(3) of the Representation of

People Act, 1950, the high court has the jurisdiction to go into that

question to determine whether any vote has been improperly accepted or 17rejected.

III Supreme Court and its judicial agility: Adding wings to the

clamour of article 226

Although the Hon'ble Court in its previous decision clearly

restrained courts from interfering in electoral matters till the election

proceedings were over, it should be noted that the Hon'ble Supreme Court

differed from its own decision given in Ponnuswami's case, in the case of 18

K. Venkatachalam v. A. Swamickan. In the latter case, the petitioner was

not in a position to challenge the election of the appellant since the

limitation period had expired before the allegations against the appellant

were discovered. Later, a writ was filled in the Madras High Court under

article 226 and it was held that appellant was not qualified to be the MLA

of Tamil Nadu. The appellant filed an appeal in the Supreme Court raising

his right to be an MLA. The contention before the Supreme Court was

that the Madras High Court didn't have jurisdiction over the writ petition

15 Lakshmi Charan Sen v. AKM Hassan Uzzaman and Ors., AIR 1985 SC 1233.16 Indrajit Barua and Ors v. Election Commission of India and Ors., AIR 1986 SC 103.17 Baidyanath Panjiar v. Sita Ram Mahto, AIR 1970 SC 314; Kabul Singh v. Kundan Singh, AIR 1970 SC 340 (India); Narendra Madivalapa Kheni v. Manikarao Patil and Ors., AIR 1977 SC 2171.18 AIR 1955 SC 233.


because it falls under article 329(b). However, the Supreme Court upheld

the jurisdiction of the high court in the instant case giving article 226

widest amplitude, especially in cases where alternative could not be had

to the provisions of the suitable Act or statute. The court also held that

article 329(b) will not come into force when the case falls under article 19191 and 193.

The Hon'ble Supreme Court leaped further to widen the scope of 20jurisdiction under article 226 in Manda Jaganath v. K.S. Rathnam, and

observed that erroneous actions which are amenable to correction in the

writ jurisdiction of the courts should be such as had the effect of

interfering with the free flow of the scheduled election or hinder the swift

progress of the election which is of paramount consideration. However, it

held, if by an erroneous order, conduct of the election is not hindered,

then the courts under article 226 of the Constitution should not interfere

with the orders of the returning officers, the remedy for which lies in 21

election petition only. The Supreme Court has further exaggerated the

role of courts in entertaining election disputes holding that the

proceeding has to be initiated by an election petition and in any manner as

provided by the statute, but once the tribunal had made any determination

or adjudication on the matter, the powers of this court to interfere through 22

special leave can always be exercised under article 136.

23 In the landmark judgment, Hari Vishnu Kamath v. Ahmad Ishaque,

in regard to high court's jurisdiction to entertain election disputes, the

Supreme Court held that once the proceedings have been instituted in

accordance with article 329(b) by presentation of election petition and

the constitutional requirement has been fully satisfied, the trial of the

election petition by the election tribunal was subject to the general law

and supervision of high court.

Increasing judicial activism changed the judicial attitude of the 19 Supra note 18.20 AIR 2004 SC 3600.21 Ibid.22 Supra note 8.23 AIR 1955 SC 233.


Supreme Court, in Election Commission of India v. Ashok Kumar and 24Ors. evolved a new era and laid down the foundation for the gradual

tectonic shift in the court's approach to election matters. The Hon'ble

Supreme Court carved out certain exceptions in the sweep of article

329(b) and it laid down as to when high court could intervene in electoral

matters in the exercise of their writ jurisdiction under article 226. The

apex court determined that any decision sought and rendered will not

amount to 'calling into question an election' if it subserves the progress of

the election and facilitates the completion of the election. It added that

anything done in furtherance of the election proceedings cannot be 25

described as questioning the election. The court went further on to state

that judicial intervention is available, but without interrupting,

obstructing or delaying the progress, if assistance of the courts has been

asked merely to correct or smoothen the proceedings of the election, to

remove the hindrance therein, or to preserve a vital piece of evidence if

the same would be lost or destroyed or rendered irretrievable by the time

the results are declared and the stage is set for invoking the jurisdiction of 26 the court.

The court, revealing the irretrievable injustice caused to the 27

petitioner in Sarvothama Rao v. Chairman, Municipal Concil, Saidapet

observed:

I am quite clear that any post-election remedy is wholly

inadequate to afford the relief which the petitioner seeks,

namely, that this election, now published, be stayed, until it

can be held with himself as a candidate. It is no consolation to

tell him that he can stand for some other election. It is no

remedy to tell him that he must let the election go on and then

have it set aside by petition and have a fresh election ordered.

The fresh election may be under altogether different

24 AIR 2000 SC 2979.25 Ibid.26 Subhash Son of Rohtas v. State of U.P, 2007 (3) AWC 2561.27 (1923) 45 MLJ 23.


conditions and may bring forward an array of fresh

candidates.

IV Fading clout of election tribunals

With the enactment of the constitution, which made India as

sovereign, democratic, republic, right to vote in form of universal adult

franchise gave equal status to all the Indian citizens. Subsequently,

Representation of People Act, 1950 which came into force on 12th May

1950, and Representation of People Act, 1951 were passed which

provided for allocation of seats, qualification of voters, the preparation of

electoral rolls and an authority to adjudicate the issues involving election

matters in form of election tribunal. Initially, provisions were made in 28section 86 of the Representation of People Act, 1951, for the

appointment of an election tribunal by the election tribunal to try

petitions calling in question any parliamentary election or any

legislatures within Indian territories, and the election commission under

article 324(1) was provided power to supervise election tribunals.

The next important contention before the Hon'ble Supreme Court

was whether the high court under its wide sweeping authority under

article 226 could issue writ contrary to the verdicts of the election

tribunals as they were under its territorial jurisdiction. It was argued that

since the election tribunal became functus ofcio after they pronounce the

decision, therefore, they did not come under article 226. However, the

Supreme Court held that if the true meaning of article 226 is construed the

high court have power under article 226 to issue writs of certiorari for

quashing the decisions of the election tribunal, notwithstanding that they 29

become functus ofcio after the election. election tribunals were also

held to be under the superintendence of the high court, both judicial and 30administrative, under article 227 of the constitution. Gradually, the

courts have assumed appellate jurisdiction over electoral matters,

28 Representation of People Act, 1951, s. 86.29Supra note 23.30Waryam Singh v. Amarnath and anr., AIR 1954 SC 215.


however, this view of the Supreme Court was in total contrast to section 31100 of the Representation of People Act, 1951 which stated that the

decisions of the election tribunal will be final and binding.

The experience of the Election Commission showed that the system

of election tribunals was not functioning smoothly and the trial of

election petitions by the election tribunals was getting inordinately

delayed, as even the interlocutory guidelines of the tribunals were being

faced up to before the high court under their writ jurisdiction under

articles 226 and 227 and, in many cases, further before the Supreme

Court by way of appeals against high court orders.

32 By Hari Vishnu Kamath case, it was also held that once the

proceedings for an election petition proceeded in the election tribunals,

thereafter, the constitutional embargo created by article 329(b) would not

be attracted, and election tribunals were under both judicial and

administrative supervision of the respective high court under article 227.

Hence, over election matters, both the Supreme Court (under article 136)

and high court (under article 226) assumed its exceptional jurisdiction

over disputes regarding election matters. High courts were given formal

appellate jurisdiction over election matters when Representation of the 33

People Act, 1951, was amended in 1956. Therefore, a three-tier system

came into force to try election petitions which eventually took a long time

to resolve election disputes. Under such circumstances, the Election

Commission, for expediting the disposal of election petitions

recommended that the cases of election petitions should be given to the

high court instead of the election tribunals.

In furtherance, Constitution (Nineteenth Amendment) Act 1966 was

passed amending article 324(1), taking away the jurisdiction of the

Election Commission to appoint election tribunals, and Representation 34of the People (Amendment) Act 1966 inserted section 80A, providing

31 Representation of People Act, 1951, s. 100.32 Supra note 23.33 Representation of the People Act, 1951.34 Representation of the People (Amendment) Act 1966.


that high court should have jurisdiction to try an election petition. Further 35article 329A was also deleted by the Constitution (Forty-fourth

36Amendment) Act, 1978 providing for all petitions to be filed only before

the high court. The current status is that election petitions are directly to 37

be entertained by the high court from where an appeal may be taken to

the Supreme Court under articles 132, 133, 136.

V The jurisdiction of the high court post the array of amendments:

An outline

Array of amendments to the Constitution includes seizure of power

from election commission to appoint election tribunals and direct

entrustment of election petitions to high court under section 80A of the 38Representation of the People Act puts forth a serious concern, up to what

extent article 329(b) of the Constitution of India overrides the high court's

jurisdiction in entertaining election disputes. Article 329(b) has for long

remained a debated contention. Provisions of Representation of the 39

People Act, 1951 and articles of the Constitution of India read in

consonance provide a remedy for any unfair means during the election

process. They do not totally exclude the right of a citizen to approach the

court so as to have the wrong done remedied, nevertheless the lesson is

that the election rights and remedies are statutory, trifles even if there are

irregularities and illegalities shall be ignored till the election proceedings 40in question are over. The non-obstante clause under article 329(b)

though automatically eliminates the high court's jurisdiction under article

226 in dispute calling into question an election including the conduct

thereof, but it does not extinguish the remedy, it only postpones the

remedy to the post-election stage.

35 Art. 329A.36 Constitution (Forty fourth Amendment) Act, 1978.37 H. P. Mulshankar Trivedi v. V.B. Raju, AIR 1973 SC 2602.38 Supra note 33 at s. 80A.39 Ibid.40 Bharamraj S. Parmaj v. The State of Karnataka, ILR 2006 KAR 2896.


By analysing the different judgments given by the Supreme Court, the

jurisdiction of high court can be summarised thus:

If an election (the term being widely interpreted so as to include all

steps and entire proceedings commencing from the date of

notification of election till the date of declaration of results) is to be

called in question, and if such questioning may have an effect of

interrupting, obstructing or protracting the election proceedings in

any manner, the invoking of judicial remedy has to be postponed till 41

after the completing of proceedings in election.

Any decision sought and rendered will not amount to “calling in

question an election” if it subserves the progress of election and

facilitates the completion of the election. Anything done towards

completing or in furtherance of the election proceedings cannot be 42

described as questioning the election.

Subject to the above, the action was taken or orders issued by the

Election Commission are open to a judicial review of decisions of

statutory bodies such as, a case of mala de or arbitrary exercise of

power being made out or the statutory body being shown to have 43

acted in breach of law.

Without interrupting, obstructing or delaying the progress of

election proceedings, judicial intervention is available if assistance

of the court has been sought merely to correct or smoothen the

progress of the election proceedings, to remove the obstacles

therein, or to preserve a vital piece of evidence if the same would be

lost or destroyed or rendered irretrievable by the time the results are

declared and the stage is set for invoking the jurisdiction of the 44court.

41 Supra note 23.42 Ibid.43 Ibid.44 Ibid.


The court must be very circumspect and act with caution while

entertaining any election dispute though not hit by the bar of article

329(b) but brought to it during the pendency of election 45

proceedings. Care has to be taken to see that there is no attempt to

utilise the court's indulgence by filing a petition, which is outwardly

innocuous but essentially a subterfuge or pretext for achieving an 46ulterior or hidden end.

High court shall have jurisdiction wherein the relief sought may not

restrict or interfere the election proceedings but the jurisdiction of

the court is invoked so as to correct the election process taking care

of such aberrations, as failing to such step, it may result in stopping 47or breaking the election process.

VI Conclusion

The judicial review being a basic feature of the Constitution of 48

India gives Supreme Court wide jurisdiction to interpret the

Constitution and other different statutes of the country. Extensive

analysis of different case laws makes it quite evident that though article

329(b) of the Constitution bars courts from entertaining any disputes

regarding election matters, but the courts have effectively implicit writ

jurisdiction in election disputes. Moreover, all the election petitions, state

and union legislature, filed under sections 80 and 80A of the 49Representation of the People Act, 1951 are under exclusive high court

jurisdiction, but the legislative intent of the constitutional forefathers

behind article 329(b) were well reflected, e.g. if any irregularities are

committed while election is in progress and they belong to the category or

class which, under the law by which elections are governed, would have

the effect of vitiating the “election” and enable the person affected to call

it in question, they should be brought up before a special tribunal by

45 Supra note 23.46 Ibid.47 Ibid.48 Minerva Mills v. Union of India, (1980) 3 SCC 625.49 Supra note 33 at s. 80 and s. 80A.


means of election petition and not made the subject of a dispute before 50any court while the election is in progress. The court also explicated that

this court finds, howsoever, no connotation in legislating article 329(b) if

the grounds on which an election proceedings can be called in question

could be raised at any preceding stage and inaccuracies, in any, are

corrected.

However, in light of above grounds, it is needless to say that due to

the sensitive and extraordinary nature of the power exercised by the

courts, it is mandatory for the courts to act with extra care and great

reluctance and shall refrain from doing so as far as possible except on a

clear and strong case for its intervention has been made out by raising the

pleas with particulars and precision and supporting the same by 51necessary material.

Even though the courts have this implicit jurisdiction in the best ever

connotation 'interest of justice', the long-term ramifications of such

activism must be considered. The debate is broadly framed with respect

to ensuring an effective instrument 'separation of powers' that is the

lifeline of the Indian constitutional framework. It puts forth a question as

to the legitimacy of separation of power between the legislature, the

judiciary, and the executive, as well as concerns about the legitimacy of

judicial interventions in the long run.

Another negative postulate of high court assuming jurisdiction in

election matters is its detrimental effect on the expeditious disposal of

cases. Section 86 and section 87 of the Representation of the Peoples Act,

1951, provides that the high court shall make an endeavor to dispose of an

election petition within six months, from the date when it is presented,

and also as far as possible conduct proceedings of the election on day to 52day basis. The extensive backlog of cases and overburdening of Indian

legal system is no more an unknown fact, jurisdiction in election matters

have further added to this burden. In practice, however, cases involving

50 Supra note 10.51 Supra note 5.52 Supra note 33 at s. 86 and s. 87.


election petition are seldom seen to be timely resolved. According to the

report 'Ethics in Governance' of the Second Administrative Reforms

Commission, “such petitions remain pending for years and in the

meanwhile, even the full term of the house expires, thus rendering the 53

election petition infructuous.” The commission in its report, 'Ethics in

Governance, recommended in detail that “special election tribunals

should be constituted at the regional level under article 329(b) of the

Constitution to ensure speedy disposal of election petitions and disputes 54

within a stipulated period of six months”.

Moreover, if we analyse section 100 of the Representation of the 55

People Act, 1951, before 1966, it stated that the orders of election

tribunal shall be final to ensure expeditious disposal of election disputes,

considering the important functions delivered by the legislature, but the

gradual encroachment by courts in election matters seems to have failed

the legislative intent. The main objective of making the judicial review as

the backbone of the Constitution was to eliminate the legislative

intricacies and to give a clear picture of the constitution, or statute.

Considering the importance of election matters, it is humbly submitted

that the concept of election tribunals as envisaged before 1966 was the

most successful method of resolving disputes in election matters. Article

329(b) also substantially deals with the requisite behind a judicial

tribunal to deal with disputes arising out of or in connection with 56elections.

Detailed analysis of the issue has made it quite clear that the courts

now actively exercise jurisdiction over electoral disputes even in the

intermediary stage of the electoral process, though exclusively barred by

article 329(b), but the courts must ensure that while exercising such

extraordinary jurisdiction they must not interfere with the formation of

the legislature, considering the important purpose it serves.

53 Background Paper on Electoral Reforms, Legislative Department Ministry of Law and Justice, Government of India, 31.54 Ibid.55 Supra note 33 at s. 100. 56Supra note 12.


THE CONSTITUTION OF INDIA ON UNIFORM

CIVIL CODE: LOOKING BEYOND THE

INTERESTED REGIMES*Divyanshu Chaudhary

Abstract

The Uniform Civil Code under article 44 of the Constitution bestows a neutral concept wherein it enshrines the strong idea of uniform legislation throughout the territory of India irrespective of any proclivity towards specific religion; this, in this way, ensures the equality and non-discriminatory treatment of any citizen in the country while nurturing the idea of harmony and stability in the society nullifying the dominion of a particular group of society or their discriminatory personal practices. Therefore, having this background into consideration, the authors, while regarding the various developments and discussions attached with Uniform Civil Code, are strived to look into and examine the possible measures which can be taken to implement uniform civil code in India leaving the personal spheres, stretching upon the situations which are to be tackled with. This paper is also proposed to scrutinize and explore the various judgments of the Supreme Court in this regard (e.g. Shah Bano case, Sarla Mudgal case, Lily Thomas case & Danial Lati case etc.); merits and demerits of the concerned cases shall be discussed with regard to the concept of Uniform Civil Code with the prevailing current scenario in India in this regard. In the proposed paper, the authors are strongly inclined for advocating the urgent need for its implementation providing the conclusion with appropriate recommendations on the basis of the findings throughout the research paper.

I Introduction

IT IS a matter of regret that article 44 of our Constitution has

remained a dead letter. It provides that the state shall endeavour to secure

a Uniform Civil Code (hereinafter UCC) for the citizens throughout the

territory of India. There is no evidence of any official activity for framing

a UCC for the country. A belief seems to have gained ground that it is for

the Muslim community to take a lead in the matter of reforms of their

personal law. A common civil code will help the cause of national

integration by removing disparate loyalties to laws, which have

* th 5 year student, B.A. L.L.B. (Hons.), School of Law, Galgotias University, Greater Noida.

conflicting ideologies. No community is likely to bell the cat by making 1gratuitous concessions on this issue.

The above observation of Y. V. Chandrachud, C.J., in Shah Bano

case may altogether be adopted in order to understand the importance of

immediate implementation of UCC in India. As the Constitution of India

chooses for a secular state (neutrality towards religion) where all citizens

have equal rights and safeguards whether in the form of fundamental

rights or in directive principles of state policy; the preamble also

guarantees every citizen the equality in justice, promotes unity and

integrity of the nation by ensuring the individual dignity. Therefore, the

law governing the personal matters such as marriage, divorce,

maintenance, guardianship, adoption, inheritance, and succession which 2at present is determined by one's religion must also be the same as to

promote integration and unity of the nation and to endure equality

amongst citizens circumventing all kind of indiscrimination against a

particular religion that is happening in the present system.The voice for

UCC has been rising from a long time back in order to give life to article

44, that reads as, "the State shall endeavour to secure for the citizens a 3UCC throughout the territory of India".

The Constitution of India came into force in 1950 and since then,

article 44 has been gathering dust with no government at the centre ever

having any guts and wisdom to touch it. Figuratively speaking, it has 4remained a dead letter. It is more than half-a-century since article 44, was

enacted but successive governments have not shown the necessary 5

gumption and courage to act upon it and the only way to carry out the

legislation depends upon the will and the competence of the legislature

that is what the judiciary has many a time observed in various cases

1 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.2 Gerald James Larson (ed.), Religion and Personal Law in Secular India: A Call to Judgment 104 (Indiana University Press, Bloomington, 2001). 3 Constitution of India, 1950, art. 44. 4 Shabbeer Ahmed, “Uniform Civil Code (Article 44 of the Constitution) A Dead Letter” 67 The Indian Journal of Political Science 3 (2006). 5 Leila Seth, “A Uniform Civil Code: Towards Gender Justice” 31 India International Centre Quarterly 4 (2005).


before it. Therefore in order to fill the gaps in implementation of the 6personal matters because of different personal laws governing different

religions such as Hindus (including Sikhs, Jains and Buddhists),

Muslims, Christians, Parsis and Jews, Constitution of India recognizes a

UCC as one of the steps to achieve national integration by moving away

from the personal laws. Ambedkar, while addressing the Constituent

Assembly said that, 'I personally do not understand why religion should

be given this vast, expansive jurisdiction, so as to cover the whole of life 7

and to prevent the legislature from encroaching upon that field'. But at

present, the debate over a UCC appears hopelessly divided along both 8

political and religious lines that ultimately depicts today's society where

the religion, mixed with personal practices, has acquired high importance

generating hardships that it is, in the absence of a UCC, affecting the life

of individuals defying the goals enshrined in the preamble that are

equality, justice and the integrity of the nation.

Therefore, this paper is an attempt to cover all the problems involved

after examining the various constitutional facets involved; having this

note into account, this paper may be divided into: firstly, different

religions, their practices and ideologies; secondly, what is UCC, the

Constitution and its importance; thirdly, the legal battle for UCC;

fourthly, advantages of its implementation and hindrances which may be

faced and fifthly followed by the conclusion along with suggestions.

II Religions in Constitution: Their practices and ideologies

Each fundamentalism is a political and not a religious movement

based on an agenda of creating an exclusive realm where they can control 9

the citizenship. Preservation of religious personal laws into the post-

colonial era may have been necessary under the circumstances at

6 B. M. Gandhi., V. D. Kulshreshtha's Landmarks in Indian Legal and Constitutional History 298, 446 (1989).7 Deepa S. Reddy, Religious Identity and Political Destiny: Hindutva in the Culture of Ethnicism 170-171 (Alta Mira Press, Lanham, 2006).8 Shalina A. Chibber, “Charting a New Path toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code” 83 Indiana Law Journal 695 (2008).9 Supra note 5 at 53.

The Constitution of India on Uniform Civil Code: Looking Beyond the Interested Regimes | 145

independence, but their continuation into the twenty-first century has

caused injury to India's religious minorities as well as to Indian women of 10every religion. The Constitution of India bestows the idea of democratic

government while keeping its roots in a secular state. The state ensures

religion neutrality towards every citizen working towards the unity and

integration of the nation. However, India comprising of multicultural

societies professing and practising different religions and speaking

different local languages, coexist in harmony is one of the largest 11

democracies. India is imbued with diverse religions, and each religious

community has its own personal laws that govern marriage, adoption, 12

succession, and the like. Thus, it has been said that the genius of the 13Constitution of India is its secular ambiguity; it therefore protects the

religious rights of Hindus (including Sikhs, Jains and Buddhists),

Muslims, Christians, Parsis and Jews etc. People of different religion

have distinct religious practices and ideologies through which they

govern all their personal and family matters such as marriage, divorce,

maintenance, guardianship, adoption, inheritance, and succession. Such

right of religious practice and propagation is protected by the

Constitution of India by virtue of articles 25 to 28; article 25 provides that

all the persons are equally entitled to freedom of conscience and free 14

profession, practise and propagation of religion. However, it is notable

that the words “personal law” do not appear in any of the religious

provisions of the Constitution and the religious personal law is absent 15from the constitution, but it is persistent in Indian culture.

10 Supra note 4 at 701.11 Anil Malhotra and Ranjit Malhotra, “Hindu Law and Uniform Civil Code - the Indian Experience” International Survey of Family Law 101 (2007).12 K.G. Balakrishnan, An Overview of the Indian Justice Delivery Mechanism, Speech at International Conference of the Presidents of the Supreme Courts of the World, Abu Dhabi, March 23-24, 2008, 3, available at: http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf (last visited on September 29, 2017).13 James Chiriyankandath, “Creating a Secular State in a Religious Country': The Debate in the Indian Constituent Assembly” Commonwealth & Comp. Pol. 1 (2000).14 Supra note 3 at art. 25 (1).15 Supra note 4 at 699.


Then also by virtue of rights conferred by the constitution, the

people belonging to different religions practice their own traditions,

customs and usages like Hindus are mainly governed by Hindu Marriage

Act, 1955, Hindu Succession Act, 1956, Hindu Minority and

Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956,

Indian Succession Act, 1925 and Special Marriage Act, 1954. To the

Muslims, the Muslim Personal Law (Shariat) Application Act, 1937,

Dissolution of Muslim Marriages Act, 1939, Muslim Women (Protection

of Rights on Divorce) Act, 1986 and Muslim Women (Protection of

Rights on Divorce) Rules, 1986 are applied and the rules envisaged in

Sharia are largely applicable. The Christian Marriage Act, 1872 applies

to the Christians in their personal matters of marriage and divorce and so

has been enshrined in The Parsi Marriage and Divorce Act, 1936 for 16 17Parsis. In India we,

instead of moving toward a secular, equality-based legal

system, the recognition of personal laws under the guise of

protecting minorities from a dominant majority culture

helped institutionalize patriarchal traditional practices that

disadvantage Indian women.

What is necessary to be extracted here is that Indian citizens are still

governed by their own personal laws which create chaos in the society as

many are overlooked because of the unfair provisions contained therein.

III UCC and its importance

The Civil Code of a nation is a set of rules that governs the personal

matters of the citizens which relating to marriage, divorce, adoption,

custody of children, inheritance, succession to property etc.; whereas a

common civil code will provide for the uniformity in the procedure to

16 Supra note 9 at 103-104.17 Pratibha Jain, “Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women's Rights in India” 23 Berkeley Journal of International Law 211-212 (2005).


deal with the personal matters superseding the present ambiguities as Mr. 18Shabber Ahmed rightly observed that,

The Common Civil Code if enacted will deal with the personal laws

of all religious communities relating to the above matters which are all

secular in character of Indian state and to enhance fraternity of unity

among citizens by providing them with a set of personal laws which

incorporates the basic values of humanism.

Article 44 of the Constitution of India casts a duty upon the state in

the form of directive principle (directive principles) that the state shall

endeavour to secure for the citizens a UCC throughout the territory of 19India. If ever fulfilled, article 44 would almost certainly sound the end to

religious personal law, requiring all Indians to be governed by one secular 20 21civil code. Although directive principles are not enforceable in the

court of law, a secular and democratic state must give the weightage in

considering the implementation of such code in order to maintain the

same line status of the citizens that ultimately leads the nation towards

unification and integration. The provisions contained in part IV of the

Constitution are fundamental in the proper governance of the state and it

is the duty of state to enact laws after considering the directive principles.

Though directive principles are not justiciable they are as much part of

the Constitution as the fundamental rights and, therefore, they deserve as 22much attention and importance as the fundamental rights do.

Constitutionalism: Article 44, Preamble and part III

The Constitution of India grants religious freedom only to the extent

that religion does not conflict with the Constitution. When such a conflict

exists, the religious tradition must be modified. Those aspects of the

tradition that do conflict with the Constitution can be classified as secular,

18 Supra note 4.19 Supra note 3 at art. 44.20 Archana Parashar, Women and Family Law Reform In India: Uniform Civil Code and Gender Equality 261 (Sage Publications, California, USA 1992). 21 Supra note 3 at art. 37.22 M.P. Singh, “The Statics and the Dynamics of the Fundamental Rights and the Directive Principles - A Human Rights Perspective”5 SCC (Jour) I (2003).


rather than religious, and removed outside the scope of the constitution's 23protection of religious freedom.

It is of common parlance, when we discuss article 44, to get 24

captivated towards the provisions of right to freedom of religion under

part III of the Constitution as they provide people the freedom to practice

their religion as they want. Article 25 of the Constitution of India

provides that all the person are equally entitled for the right freely to

profess, practice and propagate religion but such right is subject to public 25

order, morality and heath and to other provisions of this part. Article 26

of Constitution of India further enriches the former by empowering every

religious denomination or any section thereof with the freedom to 26manage its own affairs in matters of religion. It though strengthens the

idea of liberty to manage their own religious affairs but these provisions

are altogether required to be read and interpreted with the consonance of

articles 14, 15 and 21 of Constitution of India which respectively provide

for the equality before the law and equal protection of law, non-

discrimination by the state on ground of sex, religion, race, caste, sex etc., 27 right to life and personal liberty. It has been well observed that:

The argument that personal law is immune from the

intervention of the sovereign legislature is not sustainable.

The right to be governed by personal law was never

considered as part of the right to freedom of religion

guaranteed by article 25, of the constitution. Moreover,

freedom of religion guaranteed by article 25, is subject to

'other provisions of this part' which means it is subject to the

provisions contained in part III which contain guarantees of

the fundamental rights. Even if freedom of religion

23 P.B. Gajendragadkar, The Constitution Of India: Its Philosophy and Basic ndPostulates 19 (Oxford University Press, Oxford, 42 edn., 1969).

24 Supra note 3 at art. 25-28.25 Supra note 14.26 Supra note 3 at art. 26(b).27 S.P. Sathe, “Uniform Civil Code: Implications of Supreme Court Intervention” 30 EPW 2166 (1995).


comprehends the right to be governed by personal law, it

does not cover the right to perpetuate denial of equality or

personal liberty to a section of people who are governed by

such personal law.

Moreover to this, the preamble to the Constitution also enshrines the

idea of a secular nation where everyone has right to be secured in matter

of justice including social, equality of status and of opportunity, 28individual dignity, unity and integrity of nation and it is of great

significance that the fundamental rights are to be interpreted in the light 29

of grand and noble vision as expressed in the Constitution. Therefore,

the right to freedom of religion under articles 25-28, cannot be construed

in isolation but the whole text must be given a wider interpretation in a

harmonious way that is the courts must expand the ambit and not 30

attenuate their meaning & content. Moreover, articles 13, 14 and 15

clearly render the women equal to men making the inconsistent part 31

(against the equality) void. Therefore, a UCC would suffice the purpose

of the existence of various provisions in Constitution as to render them

with a meaningful life.

Judiciary's stand on part III and part IV

The Supreme Court of India, in various pronouncements, has

observed that the directive principles are to be implemented and

construed taking the provisions of part III into consideration that is the

state is under an obligation to achieve the objectives envisaged without 32overriding the fundamental rights which are the basic rights available to

33a citizens; but the court held the priority of fundamental rights in case of

34 any conflict. The Supreme Court has also held that fundamental rights

28 Supra note 3 at Preamble.29 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.30 R.C. Cooper v. Union of India, (1970) 1SCC 248.31 Kirsten K. Davis, “Equal Protection for Women in India and Canada: An Examination and Comparison of Sex Equality Provisions in the Indian and Canadian Constitutions” 13 Arizona J Int.Comp. Law 31 (1996).32 State of Madras v. Champakam Dorairajan, AIR 1951 SC 228.33 Hartado v. People of California, 28 Led 232.34 In Re Kerala Education Bill, AIR 1958 SC 956.


must be harmonized with the directive principles that make one of the 35basic features of the constitution. Therefore, article 44 of the

Constitution must be read with the corresponding provisions

enumerated in part III as directive principles provide guidance for 36

interpretation of fundamental rights as also the statutory rights. In many

of decisions the Supreme Court has given many directive principles the 37status of fundamental rights. It even held that the directive principles

38now stand at par with fundamental rights.

Philosophy and importance

The recognition of cultural rights and the application of religious

law in matters of personal law do not mean that all provisions of religious 39law are applicable. Therefore, the philosophy and importance of UCC

lies in the fact that it provides for the equality and unification of the

various religious affairs so that the essence of the constitutional

provisions can be in real sense carried out and for this motion people

should outgrow the notion given by the British that personal law was part 40of religion. “The history of the Constituent Assembly's debates on UCC

indicates no intention to force a UCC upon any community opposing it

but rather, the founders hoped that the change would lead members of 41

those communities to see that a UCC would serve their interests”. And

the concept of UCC in directive principles provides that there must be a

uniform and not necessarily a common law; the expressions 'uniform' and

'common' are usually used interchangeably but they altogether have

different connotations. Uniform used within article 44, suggests that

every community must be governed by uniform principles of gender

35 Minerva Mills v. Union of India, (1980) 3 SCC 625.36 Ashoka Smokeless Coal India(P) Ltd. v. Union of India, (2007) 2 SCC 640. 37 rd J.N. Pandey, Constitutional Law of India 463 (Central Law Agency, Allahabad, 3 edn., 2016).38 Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645. 39 Gary J. Jacobsohn, Apple of Gold: Constitutionalism in Israel and The United States 177-182 (Princeton University Press, Princeton, 1993).40 Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code 39 (Aligarh Muslim University Press, Aligarh, 1998).41Madhu Kishwar, Stimulating Reform, Not Forcing It: Uniform Versus Optional Civil Code (Manushi, New Delhi, 1995).


justice and human justice; therefore each personal law must be critiqued 42from the perspective of social and gender justice. Therefore, India

should ultimately adopt a UCC and any argument that relies on the

intentions of India's founders must also acknowledge that they believed 43

the country should have one. Therefore, the importance can be well

extracted that the code is one which would not chop off the religious

rights of people but shall in a way regulate them; in this way the argument

like, “this Code is the harbinger of a western secularism, deeply atheist,

which does not suit a profoundly religious India whose secularism means 44

respect and protection of all religions” must be ignored. It can be

concluded that for citizens belonging to different religions and

denominations, it is imperative that for promotion of national unity and 45solidarity a unified code is on which there can be no compromise and the

government is under no constitutional obligation to maintain the system 46

of religious personal laws.

IV UCC: A sight at legal battle

47 In Sarla Mudgal v. Union of India, it was stated that:

Freedom of religion is the core of our culture ... But religious

practices, violative of human rights and dignity and

sacerdotal suffocation of essentially civil and material

freedoms, are not autonomy but oppression. Therefore, a

UCC is imperative both for protection of the oppressed and

promotion of national unity and solidarity.

The above observation of Kuldip Singh, J. shows how urgent the

need exists for insertion of UCC. However, in spite of no backing from

42 Supra note 24. 43 Srikanth Reddy, “What Would Your Founding Fathers Think? What India's Constitution Says-and What Its Framers Would Say-About The Current Debate Over A Uniform Civil Code” 41 The George Washington International Law Review 405 (2009-2010). 44 Olivier Herrenschmidt, “The Indians' Impossible Civil Code” 50 European Journal of Sociology (2009).45 Supra note 9 at 118. 46 Supra note 18 at 160. 47 AIR 1995 SC 1531.


the side of legislature and executive, the judiciary has done a

commendable job in providing justice to the people who faced injustice

and discrimination in the society because of the different laws prevalent

and in most of the cases women are the scapegoats who are being

marginalized in this scenario as it has been rightly observed that, “the

Indian judiciary, especially the Supreme Court, in its role as the defender

of the constitution, has been the forerunner in protecting minorities and 48safeguarding the multicultural ethos of the polity”. The court held that it

49was competent to adjudicate on the essentials of any religious practice.

Therefore, the present scenario depicts the courts' power to interpret the 50

personal laws of India's religious communities.

There has been a plethora of cases wherein the Supreme Court has

gone into the highest depth to establish the need for the UCC but nothing

has been carried out by the legislature so far which is making the situation

more vulnerable; some of such cases are:

51 Durgah Committee v. Hussan Ali: The hon'ble court in this case

went on to recognize the right to freedom of religion and observed

that in order that the practices in question should be treated as part of

religion, they must be regarded by the said religion as its essential

and integral part….unless such practices are found to constitute an

essential or integral part of a religion, their claim for protection

under article 26, may have to be carefully scrutinized.

52 In Mohd. Ahmed Khan v. Shah Banu Begum, the Supreme Court

has widely expressed the need to enact a UCC while awarding the

maintenance to a Muslim wife under section 125 of Criminal

Procedure Code , 1973 it held that article 44, has been a dead letter

in the Constitution. Consequently it created agitation amongst the

48 P. Ishwara Bhat, “Constitutional Feminism: An Overview” (2001) 2 S.C.C. (Jour) 1, available at: http://www.ebc-india.com/lawyer/articles/2001v2a1.htm. (last visited on September 29, 2017).49 Mohammad Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.50 Abdul Jalil v. Uttar Pradesh, AIR 1984 SC 882.51 AIR 1961 SC 1402 at 1415.52 AIR 1985 SC 945.


Muslims which led the government to pass Muslim Women's 53(Protection of rights on Divorce) Act, 1986. Autonomy of a

religious establishment was thus made to prevail over women's 54

rights and it effectively deprived Muslim women of the right to file 55

a maintenance petition under section 125, Cr.P.C. as the Act 56provided for no more maintenance from the husband.

57 In Sarla Mudgal v. Union of India, Kuldip Singh and R.M.Sahai,

JJ., directed the then Prime Minister to take a fresh look on article 44,

which is imperative for both the oppressed and promotion of

national unity and integrity removing the contradictions based on 58

ideologies; therefore asked the secretary to law ministry to file an

affidavit. Kuldip Singh, J., based his opinion on the ground that there

is no connection between religion and personal law in a civilized

society. The court also observed that polygamy is injurious to 'public

morals' and if some religion make it obligatory then the state can

prohibit it just as it prohibited the practice of sati in the interest of 59 public order. In this way the court also observed:

Where more than 80 percent of the citizens have already been

brought under the codified personal law there is no justification

whatsoever to keep in abeyance, any more, the introduction of the

UCC for all the citizens in the territory of India.

60 In Lily Thomas v. Union of India, the Supreme Court followed the 61same line & observed:

53 Zia Mody, Ten Judgements that Changed India 60 (Penguin India, New Delhi, 2013).54 Amita Dhanda and Archna Prashar, Engendering Law: Essays In Honour of Lokita Sarkar, 137 (Eastern Book Company, Lucknow, 1999).55 Madhavi Sunder, “Piercing the Veil” 112 Yale Law Journal, 1399 (2003).56 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 19 (Oxford University Press, Oxford, 2002).57 AIR 1995 SC 1531.58 Supra note 7 at 707.59 Supra note 47.60AIR 2000 SC 1650.61 Seval Yildirim, “Expanding Secularism's Scope: An Indian Case Study” 52 American Journal of Comparative Law 901 (2004).


The desirability of UCC can hardly be doubted. But it can

concretize only when social climate is properly built up by

elite of the society, statesmen amongst leaders who instead of

gaining personal mileage rise above and awaken the masses

to accept the change.

62 In Danial Lati v. Union of India and John Vallamatton v. Union of 63India also, the Supreme Court has reminded the legislature of its

constitutional mandate under article 44 of the Constitution to

formulate a UCC, unifying all the diverse personal laws into one 64

single code which has again revived the battle for UCC. It is

therefore apparent how the judiciary is protecting the interest of

citizens under the umbrella of one legal system which can be well

concluded under various theories of pluralism such as that of 65 66

Pospisil's theory of legal levels, Smith's theory of corporations, 67

Ehrlich's theory of living law. Drawing a distinction between rules 68

for decision and rules of conduct and Sally Moore's concept of 69 70semi-autonomous social field, the Court concludes that:

Legal pluralism is an attribute of a social field and not of law

or a legal system. A descriptive theory of legal pluralism

deals with the fact that in a given field law of various

provenances may be operative. It is when in a social field

more than one source of law, more than one legal order, is

observable, it is then that the social order of that field can be

62 AIR 2001 SC 3262.63 AIR 2003 SC 2902.64 Krishnayan Sen, “Uniform Civil Code” 39 EPW 4196 (2004).65 Leopold Popisil, Anthropology of Law: A Comparative Theory (HRAF Press, New Haven, 1971).66 M. G. Smith, Corporations and Society (Transaction Publishers, New Jersey, 2017).67 Eugene Ehrlich, Fundamental Principles of the Sociology of Law (Transaction Publishers, New Jersey, 1962).68 Supra note 20 at 9. 69 S. P. Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul, New York, 1978).70 John Griffiths, “What is Legal Pluralism?” 24 Journal of Legal Pluralism & Unofcial Law 1 (1986).


said to exhibit legal pluralism…Law is present in every

semi-autonomous social field, and since every society

contains several such fields, legal pluralism is a universal

feature of social organization…Legal pluralism is

concomitant of social pluralism: the legal organization of a

society is congruent with its social organization. Legal

pluralism refers to the normative heterogeneity attendant

upon the fact that social action takes place in the context of

multiple overlapping, semi-autonomous social fields, which

it may be added, is in practice a dynamic condition.

The above situation can be seen in India where enormous diversity

exists and India is not unique in having more than one legal systems or

laws operating within certain fields under the overall umbrella of a state 71

legal system willing to accommodate its social heterogeneity.

Therefore, UCC must be implemented so as to avoid the multiplicity of

legal systems that will ultimately prevent the conflict of interests of the

citizens.

72 In Shayara Bano v. Union of India, the Supreme Court has, in its

historical judgment, declared the practice of triple talaq

unconstitutional and arbitrary towards Muslim women. The court, 73

by the majority of 3:2, held that:

This being the case, it is clear that this form of Talaq is

manifestly arbitrary in the sense that the marital tie can be

broken capriciously and whimsically by a Muslim man

without any attempt at reconciliation so as to save it. This

form of Talaq must, therefore, be held to be violative of the

fundamental right contained under article 14 of the

Constitution of India.

71 Supra note 20 at 10. 72 2017 SCC OnLine SC 963.73 Ibid.


V Advantages of UCC

The following are the advantages which may be carried out by

implementation of UCC:

The Common Civil Code will bring uniformity in all the personal

laws governing matters like marriage, divorce, adoption,

inheritance, succession to property etc. reserving space for the

practices of all communities in a just manner.

The Code will mean the modernization and humanization of each

personal law. A uniform law would mean not necessarily a common

law but different personal laws based on uniform principles of equality of sexes and liberty of the individual.

Ambiguity which is created due to application of different laws

governing a social institution such as marriage (particularly in the

case of polygamy and divorce) can be taken away.

The UCC is required not only to ensure uniformity of laws between

communities, but also the uniformity of laws within communities 74ensuring equalities between the rights of men and women.

The continuous violation of article 14 to 18 especially against

women (as to discriminatory treatment in cases of marriage,

inheritance, guardianship, divorce, adoption and property relations)

can be prevented by its implementation as the present personal laws

are highly unjust.

By giving certain people special treatment, an uneasy division on the

basis of religion is being created. When even the law of the land is

not the same then how the state would preach equality. For this, the

UCC will serve the purpose.

In the words of Aung San Suu Kyi, “it is precisely because of the

cultural diversity of the world that it is necessary for different

nations and peoples to agree on those basic human values which will

74 F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” 50 EPW 32 (1995).


75act as a unifying factor”.

There is complete uniformity in the penal laws of the country;

similarly there is an urgent need to rectify this uneven and higgledy-

piggledy situation so as to bring light in the lives if Muslim .76

womenfolk in India. One country and one law shall be the lodestar.

Polygamy is one of the biggest drawbacks in Muslim personal law

which many countries like Syria, Tunisia, Morocco, Pakistan, Iran

etc. have codified the personal law as they either totally prohibited it

or severely curtailed it to check its misuse and abuse of this repulsive

practice; therefore for this purpose the UCC will serve best.

One of the advantages of a UCC will be a proper notice period and

registration of the marriage. The ceremonies will become optional.

But parties can have ceremonies of their choice as a ritual, i.e.,

Hindu—Saptapadi; Muslim—Nikah; Christian—Church blessing, 77

etc..

It is no less than a tyranny for a secular state like India that even after

the presence of red carpet in the form of article 44, it, so far, has not

achieved UCC.

VI Hindrances in the implementation of UCC

Religion is the biggest barrier in implementation of UCC but what is

to be seen is that when one carries his religion or religious practices,

outside one's place of worship or private residence, he exceeds the limit 78of enjoyment of this freedom and therefore the religion strictu sensu

may be delinked from matters surrounding religion so as to enable the 79

ground for establishment of a common civil code for all citizens alike.

75Aung San SuuKyi, Empowerment for a Culture of Peace and Development, Address to the WCCD in Manila (Nov. 21, 1994), available at: http://www.ibiblio.org/freeburma/assk/assk3-2c.html (last visited on September 29, 2017).76 Supra note 17. 77 Supra note 5 at 49-50. 78 N. Kanakaraj, “Uniform Civil Code - A Challenge to Minority Rights?” 15 Cochin Uni L Rev, 198 (1991).


Therefore, it is altogether important to have a sight on the hindrances

which the legislature may face in order to implement the code. The

following are possible hindrances:

The Muslims are not inclined to accept the change as it is based on

experience of history correctly argued that none other than the 80Prophet himself was capable of such a feat.

UCC can be brought out only when the communities sit together to

remove injustice from their personal laws which itself is a tough job

for the legislature as people are not inclined.

Muslims may not agree to follow the UCC as they contend sharia to

be the highest governing law which they also can not intervene with

but only God can.

The Muslim laws are very unjust towards the Muslim women.

Although they are getting justice by judiciary but the voice must be

raised out from the community as to effectively implement the UCC.

The Muslim community will stoutly oppose the implementation

supporting the violation of articles 25, 26 and 29 which Tulzapurkar, 81J., in his revealing study has convincingly proved to be

unsustainable since they are irrational, fallacious or invalid.

These are some of the discrepancies which may be faced while

implementing the UCC but emphasis must be put on the results intended

and the welfare of the civil society.

VII Conclusion

82 Injustice anywhere is a threat to justice everywhere. In Indian

society where the Constitution provides for the equality, justice and

79 Supra note 24. 80 Zafar Ahmed Khan, “Social Change and Matrimonial Relations with Special Reference to Muslim Law in India” Law and Social Change 63 (1979).81 Tulzapurkar, “Uniform Civil Code” 17 AIRJ 22 (1987).82 Martin Luther King Jr., Letter from Birmingham Jail, available at: https://web.cn.edu/kwheeler/documents/Letter_Birmingham_Jail.pdf. (last visited on September 29, 2017).


dignity to all, the advocacy of discriminations (different personal laws)

under the guise of right to freedom of religion under articles 25 and 26, is

altogether unsustainable and it is the secular state (India) which has to

take care of all the sects in civil society while equally maintaining their

personal rooms; however the maintenance of such rooms must not

adversely affect the citizens who are, without any discrimination, equally

entitled to enjoy their rights which are enjoyed by their fellow brothers

and sisters.

It is pertinent here to mention that to implement UCC is not an easy

task for the legislature; however it is altogether imperative to achieve the

goals envisaged in part IV of the Constitution in the form of article 44.

Although the Constitution has granted to the people with right to freedom

of religion, it should not altogether be forgotten that these rights are not

be studied within watertight compartments but are liable to certain

limitations enshrined thereunder itself; therefore what is required is the

harmonious construction. India needs to adopt the doctrine of co-

existence where two things are necessary that all the religious sects are

required to observe high toleration towards other religions and the other

is strict adherence of equality and non-discrimination by all the people

concerned which are also the keystones of the constitutional edifice.

The other concept which is to be taken care of is that religion must

not be mixed with other fundamental rights available to the citizens that

are equality, liberty and justice and if religious supremacy overrides such

human rights then the latter must prevail. It is imperative on the

legislature and executive to give life to this provision to achieve national

harmony. The discrepancies in its absence have to be fixed as soon as

possible and it depends upon the government's urge; if it does then the

people have to abide by it but it must not be done over a night but must be

done steady leaving no stone unturned as though justice delayed is justice

denied whereas justice hurried is justice buried. Therefore, there is an

urgent need to implement UCC as to prevent the atrocities against the

women in various communities because of their personal laws and the

candid observations of the Supreme Court in various cases must be taken


seriously by the legislature as it is the high time when we need to look

beyond the interested regimes of individual communities. As Kuldip 83Singh, J., stated:

The traditional Hindu law - personal law of the Hindus -

governing inheritance, succession and marriage was given a

go by as back 1955-56 by codifying the same. There is no

justification whatsoever in delaying indefinitely the

introduction of uniform personal law in the country. Those

who preferred to remain in India after the partition, were

aware of the fact that Indian leaders did not believe in the two

nation theory or three nation theory and also that in Indian

republic there would be only one nation - Indian nation and

no community could make a claim to be a separate entity on

the basis of the religion. Not only could a lawman, even a

layman, appreciate this judgment.

In this way, it can be well summarized that India must implement UCC

with an urgent call and in recognizing such legislation, it must take care

of various other variables related to other religions so that on one hand the

very purpose of it is not defeated and on the other, right of freedom of

religion subject to constitutional limits is not affected.

83 AIR 1995 SC 1531.


SUPREME COURT OF INDIA AND ITS

CONSTITUTIONAL INTERPRETATIONS:

THE JOURNEY SO FAR (1950-2017)*Shivansh Shukla

**Akrity Aishwarya

Abstract

This paper charts the interpretation of the Constitution of India by the Supreme Court of India. The particular focus of this article is on part III and its relation to part IV of the Constitution. In doing so, it critically analyses various landmark judgments where the Supreme Court has interpreted the fundamental rights guaranteed by part III of the Constitution and its relation to the directive principles of state policy provided under part IV of the Constitution. The paper will give a brief overview of the Supreme Court's approach in interpretation of the constitutional provisions.

I Introduction

THE CONSTITUTION of India is the primary legal document of

country. It is from this document that the various laws of the country

derive their legal sanction. The Constitution indifferently described as a

'fundamental law', 'the socio-political manifesto of a nation', 'the

instrument of governance', each signifying an important dimension of the

document. It is a living thing with a body and a soul; the soul can possibly

found in the Preamble and the chapters on rights, duties and directive 1

principle of state policy. The Constitution of India is based on the

principles that guided India's struggle against a colonial regime that

consistently violated the civil, political, social, economic and cultural 2right of the people of India. The freedom struggle itself has informed by

the many movements for social reform against oppressive social practice 3

like sati, child marriage, untouchability etc.

* rd 3 year student, B.A.LL.B., Lloyd Law College, Greater Noida, U.P.** rd 3 year student, B.A.LL.B., Lloyd Law College, Greater Noida, U.P.1 N.R. Madhava Menon, “The Beauty of the Constitution of India lies in its flexibility”, available at: http://marketime.blogspot.in/2006/05/the-beauty-of-the-indian-constitution-lies-in.html (last visited on October 29, 2017).2 Mamta Chandrashekhar, Human Rights, Women and Violation 27 (Educreation Publishing, New Delhi, 2016). 3 Anjana Maitra, “Human Rights and the Constitution of India” (May 13, 2017).

The Constitution of India in 1950 established the Supreme Court of

India, replacing the Federal Court. The makers of the Constitution

conceived of this court as a pillar of democracy and guardian of rights of th

the people. On 28 January, 1950, two days after India became a

sovereign democratic republic, the Supreme Court of India came into

existence. It is the highest court in judicial hierarchy of the country and

has original, appellate and advisory jurisdictions to safeguard the

fundamental rights of the citizens, and to act as a final adjudicatory forum

between the states and the centre. The structure of the judiciary is

provided in chapter IV of the Constitution of India. Article 124 deals with

establishment and constitution of the Supreme Court. Articles 129 to 145,

confers extensive powers on the Supreme Court which stands out as a

forum for redressal of grievances and as the guardian of rights and

liberties of people and as the final arbiter in most of disputes not only

between individuals, but also between states or between the Union and

state or between individual and state. As an appellate court, it can hear

appeals from the high courts on civil, criminal and constitutional matters.

It possesses a special appellate power to permit appeal from any tribunal,

court or high court. The court can review its own judgments. In its

advisory capacity, it answers references by the President of India on any

questions of law or fact of public importance, which may have arisen or 4

be likely to arise. All authorities, civil and judicial, within the territory of

India are mandated by article 144, of the Constitution of India to act in aid 5of the Supreme Court. The court has the authority to pass any decree and

order as is necessary for doing “complete justice”.

The Constitution of India has an impressive array of basic and

inalienable rights. These rights have received dynamic interpretation by

the Supreme Court over years and can truly said to be the basis for the

development of the rule of law in India.

4 The Supreme Court (Decrees and Orders) Enforcement Order, 1950, made by the President and published under Notification No. S.R.O. 49, Gaz. of India, 1950, Part II, u/s. 3, 13.5 th V.N. Shukla, Constitution of India 566 (Eastern Book Company, Lucknow, 5 edn., 2015).

Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 163

It has been stated that “corruption, nepotism and favoritism have led

to the gross abuse of power by the executive, which has increasingly

come to light partly as a result of investigative journalism and partly as a 6

result of litigation in courts.”

The legal position of India has developed through several judgments

of Supreme Court given in context of all of above rights, but more

specifically in context of fundamental rights, which includes right to

equality, right to freedom of speech and expression, right to propagate

and practice religion etc. The interesting aspect of these judicial

pronouncements is that the scope of the right has gradually widened,

taking into account the cultural shifts in the polity and in the society.

The very fact is that the people are the real entity for which this

Constitution was framed. It has been proved by the Preamble itself – “We

the People of India”. Therefore, everything has to be tested on the basis of

what serves the people of the country. In India, the people are supreme, 7

through the Constitution of India, and not the elected representatives.

The accountability of the government for every action taken has to be to

the legislature, which represents the people of the country.

The Supreme Court has carved for itself a place of distinction not

just in the annals of our judicial history but in the Indian public life as

well. While making singular contributions to our constitutional

jurisprudence, it has enriched our nation's social, educational and

political domains through its judges and lawyers who have given their

best in molding the foundations of this great secular and democratic

nation.

II Directive principles of state policy vis-à-vis fundamental rights

Part III and IV of the Constitution have been together described as 8“conscience of the Constitution”. The fundamental question that strike

6 th M.P. Jain, Constitution of Indiaal Law 988 (Wadhwa and Co., New Delhi, 5 edn., 2005).7 Usha Bharti v. State of U.P., (2014)7 SCC 663.8 Austin Granville, The Constitution of India, Cornerstone of a Nation 50 (Oxford University Press, Oxford, 2000).


here is which of these would prevail in the case of conflict between them.

This question has all along been the central point of controversy between

parliament and Supreme Court. Finally, it results not only in the

enactment of some of the significant constitutional amendments but also

in the pronouncement of some of the locus classic judicial decisions. In

context to this we have discussed some of the important cases.

Directive principles of state policy

The concept of directive principles embedded in the Constitution 9

was inspired by and based on article 45, of the Irish Constitution. Part IV

(37-51) contains positive obligations of the state. The state must secure a

social order in which social, economic and political justice must inform 10all the institutions of national life. Directive principle of state policy

possess basically two characteristics, firstly they are not enforceable in 11

any court. If a directive is not obeyed by the state its obedience or 12

implementation cannot be secured through judicial proceedings. But

consequently in the decisions of the Supreme Court have enforced some

of the directive principles in support of the fundamental rights. Secondly,

directive principles are fundamental in governance of the country and

shall be the duty of the state to apply these principles in making laws.

Fundamental rights

The part III of the Constitution of India has the fundamental rights, 13which is also described as the Magna Carta of India. In the late thirteen

century, King John enunciated that no person could be detained without a 14trial which gave rise to the rights in terms of entitlement. The origin or

the concept of fundamental rights, also known as natural rights or human

9 Maureen Callahan Vandermay, “The Role of the Judiciary in India's Constitutional Democracy”, 20 Hastings Int'l & Comp. L. Rev.103 (1996-1997).10 Supra note 5.11 Ibid.12 Ibid. 13 V.G. Ramchandran, Fundamental Rights and Constitutional Remedies 1 (Eastern Book Company, Lucknow, 1964).14 H.M. Seervai, Constitutional Law of India (Universal Law Publiction Co. Pvt. Ltd., 2015).


rights or basic rights or inalienable rights, is based on the theory of natural

law. These natural rights thus led to the formulation of human rights. The

influence of natural rights can be found in the English Bill of Rights,

1689, the French Declaration of Rights of Man, 1789, the United States'

Bill of Rights, 1791, the Universal Declaration of Human Rights, 1948,

as well as in the part III of the Constitution of India which deals with

fundamental rights. The fundamental rights impose a negative obligation

on the State not to encroach on individual liberty in its various 15

dimensions. However, it serves the purpose of reminding the

government in power to respect those rights and limiting the range of 16

activity of the state in appropriate directions.

Extension of directive principles to fundamental rights

Since the directive principles are not enforceable by the court it has

been advocated that they are not law and therefore their non-observance

by the state does not entail legal consequence. The relationship between

directive principles of state policy and the fundamental rights has been

the subject matter of controversy since commencement of the

constitution. In this context there are some of the judicial decisions and

views of constitutional makers.

17 In State of Madras v. Srimathi Champakam Dorairajan the

Supreme Court observed that:

The directive principles of state policy which by article 37,

are expressly made unenforceable by courts cannot override

the provisions of part III which, notwithstanding other

provisions, are expressly made enforceable by appropriate

writs, orders or directions under article 32. Directive

principles of state policy have to conform to and run as

subsidiary to the chapter of fundamental rights.

15 Supra note 5.16 M.P. Sharma, The Government of the Indian Republic 41 (Kitab Mahal, Allahabad, 1965).17 AIR 1951 SC 228.


This clearly states that in the conflict between fundamental rights

and directive proniciples of state policy, the fundamental rights will

prevail. This was contested on the ground, which fundamental rights and

directive principles are the part of the same Constitution and they

supplement and complement to each other. In the case of Chandra 18Bhavan Boarding and Lodging v. State of Mysore, the court opined that

it did not see any “conflict on the whole between the provisions contained

in part III and part IV”.

19 In Minerva Mills Ltd. v. Union of India, the court held that

“harmony between fundamental rights and directive principles is an

essential feature of the basic structure of the constitution.” In the case of 20State of Tamil Nadu v. L. Abu Kavur Bai, the court held that although the

directive principle are not enforceable yet the court should make a real

attempt at harmonizing and reconciling the directive principles and the

fundamental right and any collision between the two should be avoided

as far as possible. In Grih Kalyan Kendra Workers Union v. Union of 21India, the Supreme Court has enforced the provisions of article 39(d) by

giving the directive principles the status of fundamental rights.

III Judicial interpretation of the Constitution of India

A non-partisan and an independent judiciary that functions within

the constitutional boundaries and defined under the principle of

separation of powers is accepted as the interpreter of the Constitution and

to uphold the rule of law and the norms laid down in the Constitution. The

Supreme Court of India has opined that it is the sentinel qui vive and that it

operates as a bulwark against violations of fundamental and 22

constitutional rights.

18 AIR 1970 SC 2042.19 AIR 1980 SC 1789.20 AIR 1984 SC 626.21 AIR 1991 SC 1173.22 Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268.


“The judiciary, at one time, was considered and projected to be the

weakest branch of the state because it possessed neither power of the 23purse nor the power of the sword. This myth has been demolished.”

The Supreme Court has pronounced over thousand judgments, all of

them are significant, as it comes from the apex court of the country whose

rulings have a force of law, some are more significant in view of the

subject it dealt with and also the law it laid down. There are instances 24 where the courts find gaps in laws and may legislate in the 'interstices'.

This should not be interpreted as an Act of legislation, but simply an act of

judicial interpretation.

In many instances, the court has travelled beyond the rule of strict

statutory interpretation, and have resorted to 'purposive' interpretation of

the laws to fill-in the gaps. The Supreme Court has tried to understand the

objective of the statute in order to correct its deficiencies. However, such

purposive interpretation should only be used to treat legislative or

constitutional deficiencies and should not result in defeating the very

purpose of such legislation.

Some of the landmark judgments that have affected the

humanitarian nature of this nation, to show the journey of Supreme Court

traveled in last sixty seven years. (1950-2017) are as follows:

The first case where the Supreme Court meaningfully examined and

interpreted key fundamental rights enlisted in the Constitution is 25A.K. Gopalan v. State of Madras. In this case the contention was

whether, under the writ of habeas corpus and the provisions of the

preventive detention Act, there was a violation of the fundamental

rights entitled in article, 13, 19, 21 and 22. The Supreme Court

reiterated that the term 'due process' prevented the courts from

engaging in substantive due process analysis in determining the

23 Zia Mody, 10 Judgements That Changed India (Penguin India, New Delhi, 2013).24 Thomas Grey, “Holmes Language of Judging- Some Philistine Remarks”, 10 St. John's L. Rev. 11 (1996).25 AIR 1950 SC 27.


reasonableness of the level of the process provided by the

legislature.

26 In Budhan Choudhary v. State of Bihar, the apex court held that

article 14 did not prohibit a reasonable classification. The only

requirement is that the differentia on the basis of which the

classification was made must be intelligible and should have a

reasonable nexus with the object sought to be achieved by the

statute. The court also held that that even judiciary comes within the

definition of 'state', as under article 12, of the Constitution of India,

for the purposes of enforcing fundamental rights and in case of any

infringement on them by the judiciary, the superior courts are

entitled to scrutinize such actions.

27 In Maneka Gandhi v. Union of India, the conjoined reading of

fundamental rights was upheld and it was held that each

fundamental right did not form a separate code and thus a mere

sufficing of an express right did not relax the test on other rights.

Hence mere satisfaction of procedure was not sufficient; rather

the principle of reasonableness, which legally as well as

philosophically, was an essential element of equality or non-

arbitrariness, pervaded article 14, and the procedure contemplated

by article 21, must answer the test of reasonableness.

28 In Sunil Batra v. Delhi Administration, assuming a legislative role,

providing for the interest of the prisoners, the Supreme Court laid

down guidelines for the protection of the rights of the prisoners. The

stress was laid down on the need of the courts to be dynamic and

diversified in meeting out remedies to prisoners greater need was felt

for expeditious prison reforms and protecting of the rights of the

prisoners. Thus the court stood tall in defending the rights of the

prisoners inside prisons.

26 AIR 1955 SC 191.27 AIR 1978 SC 597.28 AIR 1980 SC 1579.


29 In Bachan Singh v. State of Punjab, the constitutionality of the

provisions imposing death penalty was upheld. The apex court laid

down the doctrine of ‘rarest of rare case’ for the purposes of

awarding of death penalty. Thus the case laid down a strong

foundation for sorting out an extraordinary case with prevailing

special circumstances, which has now become the yardstick for

awarding death penalty by Indian judiciary.

30 In Bandhua Mukti Morcha v. Union of India, the apex court

declared that article 21, of the Constitution assures right to live with

human dignity free from exploitation held that state was under a

constitutional obligation to ensure that there is no violation of

fundamental rights of any person particularly weaker sections of

society. The court gave a set of 21 guidelines to central and state

governments to check such gross abuses of citizen's rights in future.

31 In Pt. Parmanand Katara v. Union of India, the court declared that

'right to get medical care' within the purview of article 21, of the

Constitution as a fundamental right, every person in India gets the

right to approach any hospital and get medical aid even when the

legal formalities have not been complied with. As a result, the

number of deaths occurring due to refusal of the doctors to treat the

patients if it is a case of an accident or any criminal case, will go

down and the doctor will be justified in being regarded as the savior

of human life.

32 In L. Chandra Kumar v. Union of India, the court of seven judge

bench was constituted to decide upon a controversial issue relating

to the power of judicial review of the high courts and Supreme 33

Court. The apex court prescribed that:

29 (1982) 3 SCC 24.30 AIR 1984 SC 802.31 AIR 1989 SC 2039.32 AIR 1997 SC 1125.33 Ibid.


no appeal from the decision of a tribunal will lie directly

before the Supreme Court under article 136, of the

Constitution but instead, the aggrieved party would be

entitled to move the high court under articles 226 or 227 of

the Constitution and only from the decision of the division

bench of the high court the aggrieved party could move

Supreme Court under article 136, of the constitution.

34 In Vishaka v. State of Rajasthan, the court laid down the framework

and guidelines for the protection of the working woman from sexual

harassment at the work place. Another aspect to be noted here is that

these guidelines are equally applicable to the private employer,

thereby ensuring that the protection extends everywhere and the life,

dignity and profession of a working woman is adequately protected.

35 In D.K. Basu v. State of West Bengal, the Supreme Court has given

sufficient rights and remedies to have a dignified existence at the

time of being imprisoned, and detailed eleven measures to be

observed by the police to secure arrest of accused. The abuse of

powers by the police at the time of securing imprisonment has been

significantly curtailed by this decision and the court has in fact also

directed that any violation of these guidelines shall be considered as

contempt of court and shall be dealt with accordingly.

36 In Daniel Lati v. Union of India, the constitutional validity of the

Muslim Women (Protection of Rights on Divorce) Act, 1986 was

challenged before the Supreme Court. The Act was passed to

appease a particular section of the society and with the intention of

making the decision in case of Mohd. Ahmed Khan v. Shah Bano 37

Begum ineffective. It is unfortunate to note that the court did not

strike down the Act which purports to exclude Muslim women in

particular from the beneficial treatment of section 125 of Criminal

34 AIR 1997 SC 3011.35 AIR 1997 SC 3017.36 AIR 2001 SC 3958.37 AIR 1985 SC 945.


Procedure Code, 1973. The legislature to appease the Muslim gentry

may have passed the Act on political consideration but that same has

rendered an indirect classification of people of the basis of religion,

which is against the fundamental aspect of secularism which we

have adopted in our constitution.

38 In People's Union of Civil Liberties v. Union of India Supreme

Court held that a provision of negative voting would be added in the

interest of promoting democracy as it would send clear signal to

political parties and their candidates as what the electorate thinks

about them. “The directions issued herein, especially to incorporate

a NOTA button in EVM's which in turns provides a chance to

unscrupulous elements to impersonate the dissatisfied voter and cast

vote, be it a negative one”.

39 In Suresh Kumar Koushal v. Naz Foundation SLPs and IAs were

directed against the decision of Delhi High Court in Naz Foundation 40

v. Govt. (NCT of Delhi) in respect constitutionality of section 377

IPC “in so far as it criminalised consensual sexual acts of adults in

private being violative of articles 21, 14 and 15, while holding that

section 377, of IPC would continue to govern non-consensual penile

non-vaginal sex including minor.” Allowing the appeals and

reversing the learned judgment, the Supreme Court held that section

377 would apply irrespective of age and consent, and it does not

criminalize a particular people or identity or orientation.

Further Supreme Court mentioned that “while reading section 377

IPC, the division bench of the high court over-looked that a miniscule

fraction of the country's population constitutes lesbians, gays, bisexuals

or transgender (LGBTs) and in last 150 years less than 200 persons have

been prosecuted for committing offence under section 377, IPC and that

38 (2013) 10 SCC1.39 (2014) 1 SCC 1.40 (2009) 160 DLT 277.


cannot be made sound basis for declaring section 377 IPC ultra vires the

provision of article 14, 15 and 21of the constitution”.

41 In National Legal Services Authority v. Union of India, members of

the transgender community filed a writ petition seeking legal

declaration of their right to choose their gender identity other than

the one assigned to them at the time of birth and their prayer was that

non-recognition of their gender identity violates article 14, 15 and

21, accepting the prayer Supreme Court constituted an expert

committee to make an in-depth study of the problem faced by the

transgender community and suggest measures that can be taken by

government to ameliorate their problem and to prepare a report and

to make it a legal declaration and implement within six months.

In Supreme Court Advocate-on-Record Association v. Union of 42

India, the preliminary issue was constitutional validity of ninety-

ninth amendment and replacement of collegium system by National

Judicial Appointments Commission (NJAC). Rejecting the

objection, the presiding judge held that:

there was no reason for him to take to exceptional recourse of

recusal when other similarly situated Judges did not do so

and that he had a constitutional duty to perform the judicial

function and was bound under the oath to act without fear or

favour.

43 Shayara Bano v. Union of India and Ors. (also known as triple

talaq judgment): The historic judgment of five judges bench of the

Supreme Court declaring the practice of unilateral divorce (also

known as triple talaq or talaq-e-biddat) unconstitutional. It is

unequivocally established that the practice which runs counter to the

gender jurisprudence evolved by the Supreme Court, the principles

41 (2014) 5 SCC 438.42 2015 SCC Online SC 976.43 (2017) 9 SCC 1.


44of equality as ordained in the Constitution, international human

rights law and the Quran is not fundamental to the religion of Islam 45in India. The Supreme Court judges cited the laws of different

islamic countries where they have abolished the practice triple talaq.

It can be clearly stated as a judgment in favor of justice based on

women's rights as human rights that have been denied to Muslim

women for centuries despite Quranic provisions relating to gender 46and spousal equality in wedlock and beyond. However, the Quran

does not sanction triple talaq in one go. The Supreme Court's

decision has established the supremacy of constitutional guarantees

in upholding gender equality in relationships within the religious

structures of Islam.

47 Justice K S Puttaswamy (Retd.) v. Union of India and Ors. (also

known privacy judgment): Nine judges of this court assembled to

determine whether privacy is a constitutionally protected value. The

issue reached out to the foundation of a constitutional culture based

on the protection of human rights and enables this court to revisit the

basic principles on which our Constitution has been founded and

their consequences for a way of life it seeks to protect. “This case

presented challenges for constitutional interpretation”. If privacy is

to be construed as a protected constitutional value, it would redefine

in significant ways our concepts of liberty and the entitlements that

flow out of its protection. The Attorney General for India urged that

“the existence of a fundamental right of privacy is in doubt in view of 48

two decisions: first M P Sharma v. Satish Chandra was rendered by

a bench of eight judges and second, Kharak Singh v. State of Uttar 49

Pradesh was rendered by a bench of six judges. Each of these

44 The Constitution of India, art. 14,15 and 21.45 Nafees Ahmad, “Triple Talaq Judgment Upholds the Quran within the Constitution of India”, The Wire, Aug. 30, 2017.46 Dhananjay Mahapatra, “Supreme Court verdict on triple talaq: Key points”, The Times of India, Aug. 22, 2017.47 2017 SCC Online SC 996.48 AIR 1954 SC 300.49 AIR 1963 SC 1295.


decisions, contained observations that the Constitution of India does

not specifically protect the right to privacy.” Further, the Supreme

Court overruled the previous judgments and held that “The right to

privacy is protected as an intrinsic part of the right to life and

personal liberty under article 21, and as a part of the freedoms

guaranteed by part III of the constitution.”

Conclusion

The Constitution of India, inter alia, envisages a just and an

egalitarian social order promised on justice – social, economic and

political; liberty of thought, expression belief, faith and worship; and 50equality of status and of opportunity. The Supreme Court of India itself

gets its power from the Constitution. Over the years, we have witnessed

that the Supreme Court has culled out several un-enumerated rights as

being implied with the enumerated rights of the part III of the 51

Constitution. The concept of personal liberty is to be used in its widest

amplitude under article 21 of the Constitution, which ultimately brought 52a deep impact on the contemporary constitutional jurisprudence.

In many of the cases related to constitutional matters, the Supreme

Court applied innovational technique of judicial creativity to provide

justice for all the classes. However, in the above discussed cases like Naz 53

Foundation v. Govt.(NCT of Delhi) the Supreme Court of India ignoring

the miniscule fraction of the country's population which constitutes

lesbians, gays, bisexuals or transgender (LGBTs) and declared that

section 377, of IPC would continue to govern non-consensual penile non-

vaginal sex including minor, whereas in the case of National Legal 54

Services Authority v. Union of India Supreme Court of India constituted

50 K.I. Vibhute, Dr. Ambedkar and Empowerment: Constitutional Vicissitudes 119 (University of Poona Press, 1993).51G Manohar Rao, G. B. Redddy, et. al. (eds.) Judiciary in India Constitutional perspective 245 (Asia Law House, Hyderabad, 2009).52Maneka Gandhi v. Union of India, AIR 1978 SC 597.53Supra note 39.54Supra note 40.


an expert committee to make an in-depth study of the problem faced by 55the transgender community. Moreover, after Privacy judgment the right

to privacy becomes a fundamental right which also includes the rights of

homosexuals as well. This dual nature of Supreme Court proves the

inefficiency of the judiciary.

Whereas if we analyze the case of Mohd. Ahmed Khan v. Shah Bano 56Begum, Supreme Court declared that Muslim women have the right to

claim maintenance under section 125 of Criminal Procedure Code

irrespective of their religion. The problem of maintenance to the divorced

wife only arises because of the allowance of “triple talaq” in the islamic

laws. To solve these discrepancies the Supreme Court in the recent 57judgment of Shayara Bano v. Union of India and Ors. held the practice

of “triple talaq” unconstitutional as it violates article 14, 15 and 21 of

Constitution of India. The above case is an example where Supreme

Court has excellently interpreted the Constitution which benefited the

public interest at large.

Further, if we discuss the relationship between fundamental rights

and directive principle of state policy, the judiciary took time, but it did

eventually broaden its perspective in order to achieve the constitutional

goals enshrined as 'directive principles of state policy'. Directive

principles were eventually recognized, not as mere strings of words in the

Constitution, but as a catalyst to achieve social, political and economic

goals. It gave a dynamic dimension to the jurisprudence as discussed in

the paper. This new trend and the decisions show that activist judges are

not letting orthodox ideologies dictate their decision making. Instead of

becoming a stumbling block the judiciary has now taken itself the

responsibility of implementation and interpretation of laws for the

welfare of society.

55Supra note 45.56 Supra note 36.57 Supra note 46.


LLOYDIANS

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