{This article is written by Prashant Prasad, a second-year law student from University Law College. This article intends to describe the role of parliamentary privileges in safeguarding the interest of members of the house.}

Introduction 

The Parliament holds one vital position in a country and is responsible for the legislation of laws. It’s a place where people i.e. members of the house, sit and discuss the problem related to national and international issues. The composition of parliament is as such there is a Rajya Sabha (Upper House), Lok Sabha (Lower House), and President all these 3 entities together are known as a Parliament.

Because Parliament should work without any restraint and fear certain privileges have been provided collectively and individually. These rights and immunities have been provided to the members of parliament so that they can effectively discharge their functions. 

• Collectively – Privileges are being enjoyed by the members of parliament as a whole. 
• Individually – Enjoyed by each present is the house.

The Parliamentary Privileges¹ are not only available to the members of the houses but are available to the ones who are constitutionally entitled to speak and take part in proceedings of each house such as ministers, Attorney Generals, etc.

For the privileges in the state legislature, we do have Article 194 which jots down the power, and privileges of the house of the state legislature. These parliamentary privileges have been provided in the Indian constitution so that the working of the house and proceedings should take place without any kind of fear and restraint which will eventually enhance the process of legislation. This article will explain in detail what the different kinds of parliamentary privileges are and how these privileges safeguard the members of either house.  

To what extent there is Freedom of speech in the Parliament?

For the members of parliament to discuss and participate in the debates during the preceding house freedom of speech has been provided. This immunity allows the members to discuss and present their views effectively without having a fear to get penalized for the words they are saying. This privilege allows the members to present their views in a free, frank, and fearless way. 

In the case of Tej Kiran v. Sanjiva Reddy² there was a world Hindu Religious Conference that was going on in Patna, in that conference Jagadguru Shankaracharya said some statements on untouchability. Subsequently, after a few days, a derogatory statement was spoken against Jagadguru Shankaracharya on his remark on untouchability. One of the disciples of Jagadguru Shankaracharya filed a suit for damages against the six members of the parliament. The High Court rejected the plaint of the plaintiff, plaintiff again appealed to the Supreme Court. The Supreme Court emphasized Article 105(1) and held that whatever is said in parliament i.e. during the sitting of the parliament is immunized and hence members of parliament are not liable.

Limitations Freedom of speech in the Parliament

Article 118 has given that Freedom of Speech should be following the constitutional provisions and rules. Further, under Article 121 the members of parliament are restricted from discussing the conduct of judges of the Supreme Court and High Courts. These are a few limitations regarding Freedom of Speech in the Parliament apart from this the members of parliament during the session of the houses do have full right to exercise Freedom of Speech.

Publication of proceedings under the Parliament Authority

The Parliament Papers Act, 1840³ was passed which provides that publication of any reports, proceeding, papers, etc. of the houses which are to be published under the authority of the Parliament is completely privileged. Article 105(2) provides that no person shall be liable for publishing any reports, discussion, etc. of the house under the authority of members of the house. Therefore we can say that all the people who are connected with the publication of any stuff related to the parliament under the authority of parliament are completely immunized provided that the authority of parliament must be there.

In the case of Dr Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee^4, the member of the state legislature gave notice to the speaker regarding whether he can ask certain questions in the assembly. The speaker disdainfully disallowed the asking of a question. The member published this news in a local journal. In turn a govt. servant filed a suit against that member and also against the editor (under 500 and 501 of IPC⁵) who published that news and it was contended that this news defamed the reputation of the speaker. The matter came before the Supreme Court and it was held by the court that the said publication does not fall under the scope of Article 194(2), as it was not under the authority of the house and hence the Member of Parliament is not privileged in this case. The court however led the question open that whether the disallowed question can be said to form a part of a parliament proceeding or not. 

What is Freedom from arrest if anyone is a Member of Parliament?

The Member of Parliament enjoys Freedom from arrest in any civil case 40 days before and 40 days after the session of the house. The main reason behind the inculcation of this privilege is to make sure the safe arrival of and regular attendance in the Parliament. However, one main point is to be noted that this arrest is only for civil cases and not for criminal cases, contempt of court, or preventive detention. Therefore in July 2021, the Supreme Court rejected the Kerala government’s plea to withdraw the criminal charge from the MLA⁶. If any member is being arrested in the parliament then in that scenario the chairman and speaker must be informed by the concerned authority and also the reason for the arrest.

There are main other privileges enjoyed by being a member of parliament and those privileges are also regarded as Parliamentary Privileges. Such as – Rule making power, Internal Autonomy, the Right to exclude strangers, the Right of the house to regulate its Constitution, etc. 

PV Narsimha Rao v. State⁷ – An analysis of how Parliamentary Privileges safeguard the Members of Parliament 

Facts – The Narasimha Rao government was not enjoying the majority at the centre i.e. in Lok Sabha, therefore the no-confidence motion was moved by the opposite party. To eradicate that defeat based on no-confidence certain members of the ruling party gave a large sum of money to a few members of JMM (Jharkhand Mukti Morcha) to vote against the motion on the floor. However, few members voted against the motion and one became absent on the day of voting. The confidence motion was defeated in the house with ‘251’ for and ‘265’ against. However, the act committed by the ruling party came to the notice, and constantly the case came to the Supreme Court. Many questions were raised in this case and the foremost was whether all these incidents constitute criminal prosecution under a bribery case.

Issues Raised –

1. Can the members by the virtue of Articles 105(1) and 105(2) claim immunity from prosecution on a charge of bribery concerning proceedings in parliament?
2. Can the members of parliament be regarded as public servants under the Prevention of Corruption Act, 1988
3. Is the Prevention of Corruption Act, 1988 applicable in this case?

Judgment –
The Five Judge bench split their verdict in the ratio of 3:2; the court has taken judgment based on articles 105(1) and 105(2) in literal interpretation. The court of law increased the scope of these articles and held that the members are immune from any kind of proceedings against them in respect of any vote in the parliament. In this particular case, members who have given the bribe did not enjoy immunity from prosecution. The court further held that based on the literal interpretation of the Articles under question the JMM members who have taken the bribe and voted against the motion are not guilty of corruption. But one member who has taken the bribe but did not vote was held guilty of prosecution.

Analysis – It is evident from the facts and circumstances of this case that the members of parliament enjoy greater privileges and immunity concerning the parliamentary proceedings. This case showed that any work done by members of parliament during any kind of proceeding or vote in the parliament is immune from the guilt of prosecution. Thus in the nutshell, we can say that members of parliament enjoy greater privileges during the parliament which a normal person is incapable of enjoying. 

The clash between Parliament and Judiciary – Keshava Singh v. Speaker, Legislative Assembly⁸

In this case, Keshav Singh was not a member of the U.P Legislative Assembly printed and published a pamphlet that was criticized by the speaker for contempt of the house and breach of privilege of one of the members of the house. He was sentenced to imprisonment for 7 days. The petitioner however moved to court with the petition of Habeas Corpus alleging that his imprisonment is illegal and malafide as he was not allowed to defend himself.

The Allahabad High Court evaluated the facts of the petition and the petitioner was granted interim bail to the petitioner. This decision given by the Allahabad High Court was unsatisfactory by the Assembly, therefore the assembly passed the resolution that Keshav Singh, the Judges, and the Advocate of Keshav Singh has committed contempt of house, and hence they must be taken into custody.

This case was eventually transferred to the Supreme Court and finally, it was held by the court that the Judges were not guilty of giving bail to Keshav Singh. The Apex Court further stated that the High Court does have a Jurisdiction under article 226 to order a release of a person whose detention was illegal.

Supremacy! Parliamentary Privileges or Fundamental Rights⁹

In many instances there is a conflict between Fundamental Rights and Parliamentary Privileges, the question here comes which one will prevail in case of conflict. The question of conflict arose for the first time in the case of Gunupati Keshavram Reddy v. Nafisul Hasan¹⁰ in this case the U.P. Legislative assembly issued a warrant for the arrest of the Home Minster; subsequently, he was arrested from his home in Bombay on the ground of contempt of the house. He was arrested and brought to Lucknow and lodged in a hotel for a week without anything being done in the matter. Subsequently, a petition of habeas corpus was moved in the Supreme Court on the ground that his Fundamental Right was breached under Article 22(2). Article 22(2) envisaged that the person arrested must be produced before a magistrate within 24 hours which was not done in this case

Not presenting the Minister before the Magistrate within 24 hours, this argument was accepted by the court and hence allowed him a release as it amounts to the violation of article 22(2). Therefore from this case, we can observe that Fundamental Rights cannot be subsided merely based on Parliamentary Privileges. Further, in the case of MSM Sharma v. Sinha¹¹ it was held by the Supreme Court that parliamentary privileges enjoyed under article 105(3) at the centre and Article 194(3) under state legislature, are not subject to Article 19(1) (a) i.e. Fundamental Right of Speech and Expression. Hence, we can conclude the fact that between Fundamental Right and Parliamentary Privileges, Fundamental Right is supreme. 

How Judiciary interprets the Parliamentary Privileges 

The Judiciary from time to time has taken into consideration the cases in which there has been wrong committed by the members of parliament who are taking benefit of the parliamentary privileges. In the case of Keshava Singh v. Speaker, Legislative Assembly¹², the Supreme Court concluded that the privileges given to the members are the basic right and in case of dispute fundamental rights shall prevail. In many instances, it is being argued by the judiciary that in case of contradiction between privileges and basic rights it will be handled with the use of the harmonious methodology. 

The judiciary has stated that they are well aware of the fact that they do not have jurisdiction over the parliamentary matter but the judicial body should have the power to decide for the betterment of society at large or a community. Therefore any matter concerning society and community even though there is the involvement of parliament; the Judiciary shall have the power to take into consideration those matters for the benefit of society.

Conclusion 

From the above discussion, we can conclude the fact that Parliamentary Privileges are provided for the smooth and effective working of the Parliament. The members of Parliament enjoy certain immunities which are enjoyed in the house and certain conditions outside the house as well. In a democratic country like India, these Privileges are very much essential and must be carried throughout so that the parliament should work as an independent body. We have seen that in certain instances there is a conflict between the parliament and the Judiciary at that time the very essence of those privileges is the protection of an individual’s fundamental rights. Therefore in the circumstances when there will be a conflict between the fundamental right and parliamentary privileges then in that condition fundamental rights will prevail over parliamentary privileges. It is the duty of parliament not to violate any right which is being given by the constitution. It should be further noted that members should use their privileges for welfare and must not use their privileges for any misconduct. We have seen in the case of PV Narsimha Rao v. State although the member has taken a bribe for voting there were not held liable because of the parliamentary privileges. There are some loopholes still subsisting in the parliamentary privileges the authority must consider those points and proper amendments are required to be done. Therefore in the nutshell, we can conclude to the fact that parliamentary privileges are being provided for the efficient working of parliament without any fear and they must be used for that purpose only.

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[1] INDIA CONST. art. 105
[2] Tej Kiran v. Sanjiva Reddy, AIR 1970 SC 1573
[3] The Parliament Papers Act, 1840, 3 & 4 Vict c 9
[4] Dr. Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee, AIR 1961 SC 613
[5] Indian Penal Code, 1860, Act no. 45 of 1860
[6] The Privileges of Members of Parliament, Drishi Ias, (Jan 25, 2023) https://www.drishtiias.com/daily-updates/daily-news-analysis/the-privileges-of-members-of-parliament
[7] PV Narsimha Rao v. State, AIR 1998 SC 2120
[8] Keshava Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745
[9] INDIA CONST. art. 12 – 35 
[10] Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1959 SC 636
[11] MSM Sharma v. Sinha, AIR 1959 SC 395 
[12] Supra note xii

Citation

AIR 2018 SC 4321; WP (Crl.) No. 76 of 2018 D. No. 14961/2016

Decided

6th September 2018

Petitioners

Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra.

Respondent

Ministry of Health, represented by Tushar Mehta.

Bench

CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud, and Justice Indu Malhotra.

Issues

Constitutionality of Section 377 of IPC.

Introduction

Personal laws play a dominant role within Indian Legal jurisprudence. Most current-day laws are based on the codifications made to the uncodified legal literature by the British during colonialization. This is especially evident from the Hindu Personal law concepts like the co-parcener system, succession, and inheritance, mentioning the contract law aspects in works like Vyavahara Mayukha and Criminal laws from the Smritis and Shrutis. India has witnessed a phased manner of liberalization of these ancient uncodified laws, stripping away the unconstitutional aspects of patriarchal society- such as the right to equality conferred to women in claiming property from their ancestors, by the 2005 amendment to the Hindu Succession Act, among many others. Post this phase marked a further liberalization movement for equal rights by the third gender category, i.e., the LGBTQIA+ (Lesbian, Gay, Binary, Transgendered, and Queer), which has finally reached a successful end by the landmark verdict pronounced by the honourable Supreme Court of India in the Navtej Singh Johar case. This article tries to give a view on whether the verdict can be considered an end goal to the journey of struggle by the LGBTQIA+ community or if anything is left ahead.

Historical Backdrop of Homosexuality in India

The concept of homosexuality is not new to India. Ancient texts in multiple instances show its presence through multiple instances¹. Matsya Purana describes the instance where lord Vishnu had to take up the form of a beautiful woman (Mohini) in order to destroy the then demon Mahishasur, which further coupled with this union with Lord Shiva giving birth to Lord Ayappa. Mahabharat’s Shikandi and Arjun turning into a homosexual person named Brihannala for one year of exile adds to the claim of the age-long presence of homosexuality in ancient India². Further extending to legal texts like Manusmriti­, Naradha Purana, Kautilya Arhtashastra, and Vatsyayana Kamasutra, among others, strictly criticize these homosexual acts and provide for stringent punishments- which thereby clearly seeped into the codified Indian Penal Code, 1860 by the inclusion of Section 377 in the form of penalizing Unnatural offenses. Research also shows that the British Buggery Act of 1553³ explicitly criminalized these sexual activities against the order of nature as illegal, which was ultimately reflected in the form of Section 377.

Judicial Precedents giving rise to Navtej Singh

The landmark nature of Navtej Singh is primarily due to the contrasting judicial opinions available by then. It all started 24 years back, in 1994, when an NGO named AIDS Bhedbhav Virodhi Abhiyan (ABVA) filed a petition before the Delhi High Court⁴ challenging the ban on the oversupply of condoms by the Tihar Jail Authorities- Kiran Bedi, the then IG of Tihar Jail’s decision on this front to discourage such unlawful and unnatural acts as a whole. Delhi High Court however had to dismiss the petition due to non-involvement by the petitioners, paving the way for the second case instituted on these grounds in Naz Foundation v. Govt of NCT of Delhi & Others⁵.

In 2001, Naz foundation, another NGO working on HIV AIDS eradication filed a PIL before the Delhi High Court upon the same grounds to strike down Section 377 due to the absence of any constitutional validity. However, the high Court dismissed the PIL in 2004 on the technical grounds of the absence of locus standi of the petitioners. A subsequent review petition was also dismissed in 2006. It was then that the matter went as an appeal to the apex court. Supreme court ordered for reinstatement of the issue before the Delhi Court and to deal with the issue on merits. The contentions of the petitioners were upheld by the High Court considering the violation of fundamental rights of equality, privacy, and dignity, international treatises (Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and the European Convention on Human Rights), constitutional morality, and the recommendations made by the 142^nd Law Commission. The section, however, was kept intact to deal with cases of non-consensual activities.

This reasoning was challenged by a Delhi-based astrologer- Suresh Kumar Kaushal, before the Supreme Court by way of a Special Leave Petition in 2009 in Suresh Kumar Kaushal and Ors v. Naz Foundation⁶. The Supreme Court, finally in 2013, overturned the Delhi High Court’s verdict, thereby re-criminalizing consensual homosexual acts. The main reasoning by the apex court was the absence of proving the unconstitutionality of section 377 beyond a reasonable doubt. According to the Court, Section 377 is gender-neutral, and it does not in any way violate any particular group’s fundamental rights. This was coupled with the further fact that the criminalization rate, over the 150 years, was a bare minimum of just 200 prosecutions- intending no ultra-vires or unconstitutional nature.

While this decision was widely criticized as a backward step, the apex court in the meanwhile has pronounced several landmark judgments beginning with National Legal Services Authority v. Union of India⁷, 2014, where transgender people were conferred officially as the “third gender,” providing them an equal pedestal in enjoying fundamental rights and the right to self and separate identity. In the nine-judge bench landmark judgment in Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors⁸, declared the right to privacy as a fundamental right, implicit under Article 21 of the Constitution, thereby overturning the previous rulings in ADM Jabalpur v. S.S. Shukla⁹, M.P. Sharma and Others v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh¹⁰. This decision had a phenomenal bearing on the then ongoing skepticism of Section 377 and the rights of the LGBTQIA+ community as the judges, including D.Y. Chandrachud (accepted further by Chief Justice J.S. Khehar and Justices A. Abdul Nazeer and R.K. Agrawal) expressed explicit critiques to the observations made in SK Kaushal, such as the consideration of “minuscule minority” of prosecutions under Section 377- whose privacy of sexual orientation cannot, hence, be denied based on majoritarian view. All these formed a groundwork for inevitably decriminalizing Section 377 in Navtej Singh.This led to the filing of multiple curative petitions before the Supreme Court, which prompted the apex court to hear the issue afresh by a five-judge Constitutional bench- paving the way for the landmark ruling in Navtej Singh Johar v. Union of India.

Rise of Navtej Singh Johar- Important observations

This case began on Apr 27th, 2016, when five petitioners filed a new writ petition before the then CJI S.A. Bobde, challenging the constitutionality of Section 377 and the SK Kaushal verdict. The petitioners this time did not commit the mistake of filing through any NGO, thereby not losing any locus standi, which included dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur- who were all directly aggrieved by the criminalization of Section 377. This matter was posted to a five-judge constitutional bench headed by CJI Deepak Mishra before which the curative petitions from SK Kaushal were already pending. Finally, the issue was taken up as a joinder, with the hearings starting on Jan 17^th, 2018. The deliberate hearings and written submissions lasted for about nine months, ending with the final verdict on Sept 6th, 2018.

The arguments coming from the petitioners’ counsel primarily were based on drawing a nexus between section 377 and the infringement of Fundamental rights under Articles 14, 15, and 21 of the constitution, based on the underlying premise of viewing section 377 as a Victorian and colonial view, which is redundant in the progressive society. The core idea is the basic fact that consensual homosexual union, shouldn’t be seen, and termed as unnatural by its very definition. Counters from the opposite counsel for respondent union government involved taking into account the overall effect of the decriminalization on other laws, especially on the very concept of marriage and the personal and matrimonial laws surrounding it- belonging to multiple religious communities such as the Hindu Marriage Act, Parsi Marriage and Divorce Act, Special Marriage Act, and even succession laws in India, thereby further ruining the socioeconomic, political and cultural heritage of the nation. In countering the fundamental rights claims, the state relied on the already existing rights conferred to LGBT communities by the NALSA case¹¹, thereby arguing that these sort of bizarre claims by the petitioners is beyond public morality and a mere abuse of personal liberty.

Key takeaways from the judgment

It was finally, on Sept 6th, 2018, that the longstanding issue concluded with the five-judge bench of the Supreme Court unanimously re-iterated the Delhi High Court’s verdict in Naz Foundation, over-ruling Suresh Kumar Kaushal, thereby decriminalizing consensual sex between homosexual persons and concluding section 377 as violative of Articles 14, 19 (1)(a), and 21 of the Indian Constitution. The rationale behind the decision is primarily based on the ones held by Naz Foundation, including the following grounds:

• Failure of the litmus test on Fundamental Rights- The apex court reasoned section 377 as violative of Fundamental rights enshrined in the constitution on the following grounds:
  • The absence of consensual and non-consensual sex, as opposed to the presence of the same u/s 375, renders section 377 arbitrary and discriminatory against same-sex persons. The object of section 377 to protect children (under POCSO) and women (u/s 375 of IPC) lacks any reasonable nexus with the very classification of distinguishing between natural and un-natural intercourse, rendering 377 redundant and discriminatory- targeting only the LGBTQIA+ community. Hence, it violates the Right to Equality under Article 14.
  • Freedom of choice of a sexual partner under Article 19(1)(a), with the element of consent, is infringed by Section 377. Such private, consensual acts among homosexual persons do not in any way affect constitutional and public morality; hence there is no justification for imposing reasonable restrictions on this freedom of choice of the LGBTQIA+ community.
  • The full and free realization of one’s sexual identity is an essential facet of the right to life embedded under Article 21 of the constitution. The right to privacy extends to the right to protect sexual privacy. Section 377, by denying and restricting this right to determine one’s sexual orientation and partner, curtails the right to privacy of an individual.
• Violation of Yogyakarta Principles¹²– India, being a signatory to this intentional convention, binds the nations to affirm sexual orientation and gender identity as an integral part of human dignity. The preamble of this convention clearly defines sexual orientation as the “sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Section 377, thereby, clearly violates these principles, too.

From Navtej to the present- challenges persist

1.     Legal hurdles with other laws-

This issue of conferring equal sexual rights to homosexual groups is equally a matter of marriage and personal laws as much is an issue of constitutional law. Litigation in this area, starting from 1994’s petition by AIDS Bhedbhav Virodhi Abhiyan (ABVA) to this pertinent landmark Navtej Singh in 2018, only focused on the infringement of fundamental rights of the LGBTQIA+ community, making it a predominately constitutional law matter. This gives the landmark Navtej Johar judgment a limited application in the issues of homosexuality as a whole, especially due to the fact of ignoring personal law and family law matters.

The intact prevalence of heteronormative notions in all the matrimonial and personal laws in India is the major hurdle in this regard¹³. Section 5 of the Hindu Marriage Act, providing for the grounds for solemnization of a marriage, is the basis for all the other provisions to chip in, only mentions the heterosexual identifications of bride and bridegroom, excluding individuals from the LGBTQIA+ community within the purview of Hindu marriage. The conditions of the Indian Majority Act inculcated u/s 4 of the Special Marriage Act- “21 years for male and 18 years for female”, thereby subjecting the third gender to discrimination. Along similar lines, sections 7 and 8 of the Hindu Adoption and Maintenance Act exclude third genders’ capacity to take a child in adoption¹⁴. Section 21 of the same act impliedly denies LGBTs from claiming maintenance by conferring this right only to heterosexuals. Especially when same-sex couples lack that ability to procreate, one of the options, apart from adoption, to confer a biological child is to go for surrogacy. However, section 2(h) of the Surrogacy Regulation Act 2021 restricts the definition of a couple to only a male and female, clearly taking away the natural rights of a homosexual couple. This line of heterosexual depiction also extends to Assisted Reproductive Technology (Regulation) Act 2021.

Four years post the landmark judgment widely hailed both nationally and internationally, where the right to sexual orientation has been recognized as an implicit part of the right to privacy which is further an essential facet of dignity, these heterosexual ideas, and beliefs, stereotypically based on the traditional notions of family system act as a hurdle to the actual exercising of sexual rights by LGBTQIA+ community.

2.     Judicial and governmental responses-

Considering the above-stated existence of improper application of LGBT rights due to the intact application of other laws in force, Judiciary has, from time to time, over four years, evolved a case-by-case conferring of real-time liberty to LGBTs for exercising their rights. Most famously, the Single judge bench of the Madras High Court in Arunkumar v. Inspector General of Registration (2019) has recognized marriage between a cis-gendered male and a transwoman as a valid marriage u/s 5 of the Hindu Marriage act. The judge, here, made applauding observations of expanding the said matrimonial rights and allowing queer people to gain access to artificial reproductive technologies, surrogacy, and perhaps, even finally adopt children¹⁵. The Court has clearly explained that the term ‘bride would comprise cis-gendered women, including transgender women and intersex individuals who identify themselves as a “woman.”  This reasoning follows from the long-settled case in Mahadeolal Kanodia v. The Administrator General of West Bengal (1960), where the Supreme Court observed that the strict grammatical interpretation giving rise to absurdity or inconsistency could be discarded to adopt an interpretation that will give effect to the purpose of the legislature¹⁶. High courts across the nation have also received multiple petitions challenging the various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, in which the courts have affirmatively ordered the concerned governments to submit their views on the issue. Madras High Court’s judgment in S. Sushma v. Commissioner of Police¹⁷ rendered by Justice N Anand Venkatesh on a plea by a lesbian couple granted police protections from unlawful incarceration by the police engaged by their parents, has been widely hailed by activists and people connected with LGBTQIA + persons. The judgment also sought to prohibit attempts to “medically cure persons” associated with the community by creating mass awareness and sensitivity.

The response from the government, however, is not the same. Though the governmental response from the BJP-led ministers clearly applauded the inevitable decision in Navtej, their view, however, is restricted. Union Minister of Law and Justice Kiran Rejiju, in February 2021, remarked that “’legitimate State interest’ lay in limiting the institution of marriage to those of the opposite sex only to preserve ‘social morality. Hence, the government’s stance on the issue was clear: courts should refrain from legitimizing same-sex marriage.¹⁸” Even in Abhijeet Iyer Mitra v. Union of India (2021), the Centre has argued that a marriage under the Special Marriage Act is permissible only between a biological man and a biological woman. It is the “legitimate State interest” that limits the recognition of marriage only to persons of the opposite sex, as the concept of marriage is not solely relegated to the domain of privacy of an individual¹⁹.

3.     Issue of Same-Sex Marriage on the rise-

Another vital issue pertaining to the LGBT community- conferring legal recognition to same-sex marriage, is still unsettled by the Navtej judgment. Marriage, as opposed to the western tradition where it is considered a mere contract between the couples, whereas, in Indian jurisprudence, it is traditionally and at present recognized as a sacrosanct, legitimate union, authorizing the couples to share their positives and negatives in their lives with one another. This authorization also extends to procreation, sexual union, inheritance, and so on, which form a definite chain of legal aspects. For the third gender to enjoy the same legal rights arising from a valid marriage and also to societally erase the conception of the unnaturalness of same-sex relationships requires a sacrosanct bond of marriage.

Enormous litigation has become widespread before multiple High Courts, contending for conferring legal authorization to same-sex marriage in order to claim the rights conferred by Navtej Johar. Starting from the previously mentioned Madras High Court case in Arunkumar v. Inspector General of Registration²⁰, the court recognized marriage between a cis-gendered male and a transwoman as a valid marriage u/s 5 of the Hindu Marriage act. From the year 2020, writ petitions are pending before the Delhi High Court²¹ for altering the provisions of the Foreign Marriage Act, 1969, and the Special Marriage Act, 1954 to provide for registration/recognition of same-sex marriages²², they being secular legislations and the Supreme Court conferring LGBT rights in the above-said cases. A gay couple from Kerala also filed a writ petition in the same year, contending the same fact that the landmark decision of Navtej Singh would become meaningless in the absence of conferring equal access to the institution of marriage²³.

4.     Conferring Reservations- the road ahead-

The minuscule minority argument in reference to the LGBTQIA+ community continues to be heard from S.K. Kaushal till the Navtej Johar. Nevertheless, the fact in numerical is true that the third-gender community constitutes a minority population. This minuscule population, therefore, requires special reservations for their upliftment on equal footing with that of the dominant heterosexual society. This topic itself requires phenomenal research as the reservations for women are still unsettled in our country. Though the parliament of India has passed the Transgender Persons (Protection of Rights) Act, 2019, there is no mention of conferring reservations for these groups, especially when Article 16(4) of the Indian constitution clearly provides for this measure. Though the NALSA judgment provides for self-identification but does not mention the provisions regarding the mechanism to be drawn in this regard.

Expecting a step in this direction is obvious in the near future, which therefore requires how the implementation of these laws is to take place. The primary obstacle in this direction is to determine who the beneficiaries are, which usually requires the formation of boards consisting of medical practitioners, psychologists, bureaucrats, and social welfare activists for the issuance of identity cards. The result, however, with this approach is quite negatively evident from the increased bureaucratic influence, as seen with disabled persons’ identity card issuance. While some states like West Bengal have adopted the law for compulsory Sexual reassignment surgery in order to determine gender identity, this goes with a toss to the ruling in NALSA, which for not enabling such tests compulsory and is also opposed by the National Human Rights Commission, as infringing and putting at stake the LGBT’s human rights²⁴.

Further mentioning in this aspect involves the very form of reservations to be conferred, i.e., whether it needs to be a horizontal conferment of reservation on the basis of ‘gender identity under Article 15 of the constitution or to adopt a vertical reservation model wherein they will be categorized as a subset under the Socially and Educationally Backward Class (SEBC) category, under Article 16(4) of the constitution²⁵. Activists in this regard vigorously contest for the horizontal reservation over the vertical, as the clubbing down of LGBT persons under the banner of OBCs or SEBCs would curtail their self-identity as the third gender, and also when there is an express arrangement of providing for the gender-based reservations under Article 15. States like Karnataka have made a positive step in this regard by conferring 1% reservation for LGBTQIA+ people under the horizontal model for public sector jobs. While in Tamil Nādu, a vertical mode of reservation was conferred, wherein the third genders were placed under the Most Backward Classes (MBC), equivalent to the OBC category in other states²⁶.

5.     Protection of Transgenders Health-

The main issue of Navtej Johar involved the matter of consensual sex between two homosexuals or third genders, which is directly connected to the health of the LGBTQ community. However, the reality shows a clear sign of amplified discrimination against patients from this community, primarily due to the fact that the very practice and training of medical staff inculcates the idea that acts of lesbianism, homosexuality, etc., are the breeding grounds for other diseases like HIV AIDS, and therefore considered as unnatural. This, therefore, required proper sensitization and training facilities for the medical profession and also to include people from the same community in the medical field so they can better understand the problems of their own community.

High Courts in this regard have made due efforts to uphold the healthy life of LGBTs. Madras High Court in S. Sushma v. Commissioner of Police²⁷ case clearly emphasized mental as well as medical health support to LGBTs, caused due to the lack of knowledge on the part of the medical practitioners (a psychologist in that case), due to the prevalent queerphobia among the healthcare workers caused by the way MBBS course was designed in such a way. In Swati Bidhan Baruah v. State of Assam²⁸, a two-judge bench of the Guwahati High Court ordered the concerned government to take measures for the health and welfare of LGBTs.

Conclusion

This enormous research, over the 24 years of a legal battle by the LBTQIA+ community, shows the mixed response from the community- rendering this as a battle between traditional and conservative family-oriented approach to a more liberalized and modernized forward-looking and rights-centered approach, i.e., a battle of Naturalness v Unnaturalness, a battle of restrictions and autonomy-liberty. With this fact getting legal backing that homosexuality is natural, civil society demands protection of and equal treatment of the most vulnerable citizens. This aspect puts a further burden on the state to accommodate the feminist demands on the one hand and this emerging trend of the third gender on the other hand. This clears one straightforward inevitability of the reduced masculine majority trend in the public sphere- with an increased share of feminine and third genders coming into the public forum in multiple sectors, thereby representing every community’s view and accommodating every community’s needs. Indian laws are yet to witness radical changes for accommodating these issues, especially in the personal and matrimonial laws, which might also lead to a complete reading down of present laws and enacting more egalitarian ones, representing the liberties and privacies of all three genders.²⁹

References

1. Prabhash K Dutta, Homosexuality in ancient India: 10 instances, THE INDIA TODAY (July, 10, 2018, 18:40 IST), https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446-2018-07-10
2. The same mythological tales were re-emphasized in Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779.
3. The Buggery Act, Parliament of England, 1553.
4. Geetanjali Mishra, Decriminalising homosexuality in India, RHM J, 2009, 21-22.
5. Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762.
6. Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
7. National Legal Service Authorities v. Union of India, (2014) 5 SCC 438.
8. K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2018) 1 SCC 809.
9. ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
10. M.P. Sharma v. Satish Chandra, 1954 SCR 1077.
11. Supra Note 7.
12. The Yogyakarta Principles, March 2007, https://translaw.clpr.org.in/wp-content/uploads/2018/08/Yogyakarta-Principles.pdf.
13. Puneet Deshwal, Anadi Tiwari, Four years since the Supreme Court’s Navtej Johar verdict, matrimonial rights still remain in the closet, BAR AND BENCH (Sept 11th, 2022, 11:26 am), https://www.barandbench.com/columns/litigation-columns/four-years-since-the-supreme-courts-navtej-johar-verdict-matrimonial-rights-still-remain-in-the-closet?utm_source=izooto&utm_medium=push-notification.
14. A similar provision in Adoption Regulation, 2017, published on the official website of the Central Adoption Resource Authority (CARA), http://cara.nic.in/PDF/Regulation_english.pdf.
15. Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779.
16. Mahadeolal Kanodia v. Administrator-General of WB, (1960) 3 SCR 578.
17. S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096.
18. Sofi Ahsan, Centre opposes same-sex marriage in Delhi HC, says not comparable with ‘Indian family unit concept,’ THE INDIAN EXPRESS (Feb 26th, 2021, 4:05:42 am), https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/.
19. Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020.
20. Supra Note 15.
21. Supra Note 20.
22. Karan Tripathi, Marriage Equality For Same-Sex Couples: The Delhi HC Says This Is Not an Adversarial Petition, LIVE LAW (Oct 14th, 2020, 12:57 PM), https://www.livelaw.in/news-updates/marriage-equality-for-same-sex-couples-the-delhi-hc-says-this-is-not-an-adversarial-petition-164444.
23. Live Law News Network, Gay Couple Moves Kerala HC For Recognition Of Homosexual Marriages Under Special Marriage Act, LIVE LAW (Jan 27th, 2020, 2:07 PM), https://www.livelaw.in/news-updates/gay-couple-moves-kerala-hc-for-recognition-of-homosexual-marriages-under-special-marriage-act-152046
24. Shemin Joy, Introduce quota for LGBTQI+, bring law to prevent forced reassignment surgery: NHRC Core Group, DECCAN HERALD (Dec 14^th, 2020, 18:12 IST), https://www.deccanherald.com/national/introduce-quota-for-lgbtqi-bring-law-to-prevent-forced-reassignment-surgery-nhrc-core-group-927313.html
25. Reservation for Transgender persons in India, Centre For Law & Policy Research (Nov 11th, 2018), https://clpr.org.in/wp-content/uploads/2018/12/Reservations-for-Transgender-Persons-Draft-Policy-Brief.pdf. 
26. Venkatesan V, Karnataka Becomes The First State To Reserve Jobs For Transgender Persons, THE WIRE (Jul 22^nd, 2021), https://thewire.in/lgbtqia/karnataka-first-state-reserve-jobs-transgender-persons.
27. Supra Note 18.
28. Swati Bidhan Baruah vs. The State of Assam and Ors. (06.09.2021 – GUHC) : MANU/GH/0523/2021.
29. Nayantara Ravichandran, Legal Recognition of Same-sex Relationships in India, vol 5 JILS, 95, 105-108 (2017).

This article is written by Mokshith Venkata Shiva Bhyri, a 2^nd-Year BA., LLB (Hons) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.

INTRODUCTION

On August 2, the Parliament passed the Unlawful Activities (Prevention) Amendment Act, 2019. On August 8th, 2019, it was quickly approved by the President. The Amendment Act, which was passed by Parliament, resulted in a number of revisions to the Unlawful Activities (Prevention) Act of 1967. The primary modification was done to Section 35 of the Act. The most recent change to the law, the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019), allows the Union Government to label individuals as terrorists without following due process. The UAPA is also referred to as the Anti-Terrorism Act. This amendment has received much criticism as it allowed the government to classify individuals as terrorists if the government suspects they are engaging in terrorism. When a person is so classified, their name is included in Schedule 4 of the statute. Prior to the amendment, only organizations could be classified as terrorist organizations. The current challenge to the 2019 Amendment Act is merely in its earliest stages, with the State yet to file its response. Nonetheless, due to the nature of the challenge and previous complaints of the legislation as excessive, the situation is poised to provide an excellent testing ground for the scope of the government’s discretion in anti-terror legislation.

The amendment resulted in sections 35 and 36 of Chapter VI of the Act being broadened – the term “terrorist” to include individuals. It also empowers the DG of the NIA to seize property derived from terrorist funds under Section 25 and personnel with the level of inspector and higher to investigate crimes under Section 43 of the UAPA. The Central Government also establishes a Review Committee to denote the individual who has been designated as a terrorist, effectively eliminating any institutional avenue for judicial review.

CHALLENGES TO THE AMENDMENT

The principal objections to the Amendment are based on Section 35, which, in addition to categorizing organizations as terrorist organizations, expanded the power to encompass the designation of individuals as terrorists. Two petitions were filed before the supreme court regarding the constitutional validity – Sajal Awasthi filed a Public Interest Litigation (PIL) in the Supreme Court against the UAPA, 2019, claiming that it is unconstitutional since it infringes basic fundamental rights. Another petition, filed by the Association for the Protection of Civil Rights (APCR), argued that the new Section 35 enables the Centre to classify an individual as a terrorist and include his individuality in Schedule 4 of the Act, whereas previously only organizations could be designated as terrorist organizations. The fundamental point of disagreement for both petitioners is that an individual can be classified as a terrorist with no judicial assessment and even before a lawsuit is filed, which is unreasonable. They claimed that the Amendment Act violated the rights to life (Article 21), free speech (Article 19), and equality guaranteed by the Constitution (Article 14). Opposers of the Amendment contend that it provides the executive arbitrary authority and infringes an individual’s right to due process, right to protest, and right to dignity. The Court marked these petitions, and on September 7, 2019, it sent notice to the Government. Sections 35 and 36, according to the petitioners, should be repealed and declared illegal. Based on the Awasthi lawsuit, the provision’s absence of defined standards for labelling someone a terrorist violates their right to equality. As a result, the clause is manifestly arbitrary. A law is clearly capricious and inconsistent with equality right if it is established without a proper guiding foundation and is exorbitant or disproportionate in character, according to the concept of obvious arbitrariness. Awasthi further claims that the amendment infringes the right to dissent, which is a component of free speech. They highlighted the judgements in Romesh Thappar v. State of Madras (1950) and Maqbool Fida Hussain v. Rajkumar Pandey (1950) to emphasize the importance of free expression and the accompanying freedom to disagree (2008). The grounds for the petition are as follows:

1. There is an absence of substantive and procedural fair trials – There is an absence of substantive and procedural fair trials. section 35 authorizes the government to label any individual as a terrorist under the Fourth Schedule of the UAPA. Without an elaborate process, the administration can proclaim and inform based on mere belief. There is no requirement for a fair hearing. The basis for declaring someone a terrorist is imprecise and ambiguous: would it be the filing of an FIR or a trial court conviction? While S. 36 allows an individual who has been designated as a terrorist to file an appeal with the government, its implementation is problematic. A person is not notified of the reason for his or her arrest. At the level of appeal, there isn’t any provision for an oral hearing. In the case of Puttaswamy v Union of India (2017), it was reaffirmed that only through due process of law could the right to life and personal liberty be restricted. Sections 35 and 36 violate the due process requirement.
2. The law is irrational and infringes on equality – The challenging part lacks safeguards against the considerable potential for discretionary power. While the method for designating an organization as a terrorist is robust, it is inappropriate for an individual. The handling of a person is disproportionate and inappropriate because there is no clear aim underlying the differentiation between an organization and an individual. This does not meet Article 14’s ‘reasonable classification’ criteria. Furthermore, the denial of a fair hearing violated the natural justice concept of audi alteram partem, or the fair hearing rule. Invoking the case of Union of India v Tulsiram Patel (1985), the petition claims that a violation of natural justice leads to arbitrariness and thus violates Article 14. The petition also mentioned People’s Union for Civil Liberties v Union of India (2004). The Court concluded that violating human rights in the fight against terrorism is counterproductive.
3. Indirect Infringement to Free Speech – According to Maqbool Fida Hussain v. Rajkumar Pandey, dissent is an essential component of the right to free expression under Article 19(1)(a) (2008). Under the pretence of banning terrorism, the challenged Sections are intended to restrict critical expression against the government. The change contradicts the international conventions approved by India. The Amendment specifically violates legal norms under the International Covenant on Civil and Political Rights and the United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms in Counterterrorism.

CONCLUSION

The Amendment was already widely criticized since it gives the Union Government vast and indefinite authority to arrest anyone without following necessary procedures. The UAPA amendment empowers the government to violate a person’s basic rights to free speech, integrity, dissent, and reputation. The burden of evidence to counter the charges is on the individual, not just the state, and anyone can be branded a terrorist at the discretion of the government. Articles 14, 19(1)(a), and 21 of the Constitution are violated by the 2019 Act changes, and the legislature has no jurisdiction to take away a citizen’s fundamental rights because they are a fundamental component of the Constitution. Certain provisions of the recently amended UAPA, 2019, are irreconcilable with the legal structure of the country. To fight terrorism, this Act empowers the government to impose unofficial limitations on the right to free expression; yet these measures have unintended implications that limit the circulation of ideas within society. As a consequence of this law, countless journalists are placed on trial and required to withdraw their opinions on certain sensitive topics merely because the government considers that doing so will incite hatred, without giving any proof to support this claim. The most serious consequences can be witnessed in the state of Jammu and Kashmir. After Article 370 was repealed, the government gained control over the state. Many residents, especially reporters, are being tried under UAPA and are being denied the right to free expression guaranteed by Article 19(1) of the Constitution. Furthermore, the Amendment contradicts the mandate of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The preceding arguments have demonstrated how the amendment jeopardizes its citizens’ fundamental rights and threatens the very existence of opposition. When such heinous legislation breaches and deprives citizens’ rights, it is the Supreme Court’s responsibility to intervene and re-establish faith in democracy. This Amendment shows the goal of laws enacted by colonial rule to stifle various liberation movements under the guise of maintaining public order.

CITATIONS

1. K.S. Puttaswamy and Anr. vs. Union of India, (2017) 10 SCC 1 (India).
2. Union Of India and Another vs Tulsiram Patel and Others, 1985 AIR 1416 (India).

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This article is written by Shraddha Vemula, a second-year B.B.A. LLB Student at Symbiosis Law School, Hyderabad.

Background

The Constitution has been modified multiple times in order to keep up with societal changes. The Constitution was written to build an equitable society in which social, economic, and political justice are preserved, as well as equality of position and opportunity for all. Amendments to the Constitution are also made with the same goal and intent in mind. According to India’s legal history, anytime the Supreme Court issued a ruling on reservations, the Parliament would either reject or restrain the uncomfortable judicial declaration by amending the Constitution. One such example is the ratification of the Constitution (One Hundred and Third Amendment) Act, 2019, which aimed to grant reservations to economically disadvantaged parts of society.

The Constitution Amendment Act of 2019 amended Articles 15 and 16 of the Indian Constitution. These two clauses provide the foundation of reservation in sectors like education and government employment. The legislation enabled the state to grant a maximum of 10% reserve for “economically weaker parts” of society by inserting two additional articles into Articles 15 and 16 of the Constitution. As a consequence, the total number of reservations over and above the existing programme has risen to 59.50 percent.

Need for the 103rd Amendment

1. This specific amendment will deal with a problem that is prevalent in India, which is the upper caste pupils who were unable to attend public employment and further education owing to improper family financial structure.
2. Also, many of the upper caste residents live in poverty and starvation.
3. The higher caste poor will be able to receive the same level of quota as OBC thanks to this adjustment to the reservation policy.
4. The upper caste used to despise people who entered the country through reservations, but this amendment will help to end that practice.

What were the Amendments and the Additions?

1. The Amendment added clauses 15(6) and 16(6) to the corresponding provisions of Articles 15 and 16 of the Constitution, respectively.
2. The amendment gave the state the power to pass legislation aimed at “advancing any economically disadvantaged portion of citizens other than the classes indicated (in the preceding provisions).”
3. Article 15(6)(b) specifically mentions “admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Article 15(6)(a) discusses allowing the enactment of special provisions of any kind.
4. EWS reservations are required per Article 16.6 in situations involving “appointments or postings.
5. The Act specifies a 10% cap on this reserve as its maximum.

The requirement for amending Constitutional clauses

For social and economic advancement, the Constitution is modified. In the case of Keshavanada Bharati v. The State of Kerala (1973), it was noted that the people would turn to extra-constitutional tactics, such as a revolution, to modify the Constitution if no provisions were created for its amendment. Politicians have characterized the federal constitution as stiff because of the way amendments are made in federations. The American Constitution’s amending process is exceedingly challenging. The federal Constitution is frequently criticized for being overly conservative and for being too difficult to change.

The Indian Constitution was therefore drafted in a way that would allow it to adjust to the shifting needs and circumstances of an expanding people in order to avoid becoming inflexible. However, the framers did not want to make the Constitution overly pliable since it would have allowed the ruling party to play to its whims and fancies. The Constitution may be changed since it is neither too strict nor too flexible. According to Willis, there would always be a risk of revolution if no provisions for the amendment were made to the United States Constitutional Law. The risk of taking action that is too quickly would always exist if the technique of the modification were too simple. Our political institutions would be at risk of being overthrown in any scenario.

Therefore, the goal behind altering the Constitution under Article 368 was to bring about societal transformation. The Constitution’s amendment process functions as a safety valve designed to maintain the document’s provisions and to allow for amendments if needed. The risk of having a non-amendable Constitution and the risk of a Constitution that is too easily amendable have therefore been balanced by the constitution-makers.

The challenge to the Constitution’s validity

The Constitution’s “Identity” is formed by certain structural concepts, which include federalism, equality, freedom, secularism, independence of the judiciary, power of judicial review, democratic form of government, republican form of government, and others. The basic structural theory established this, thus it cannot be changed without destroying the constitution’s unique character. The Supreme Court ruled in the precedent-setting case of Kesavananda Bharati v. State of Kerala that the Parliament’s ability to amend the Constitution under Article 368 is not absolute and that even a Constitutional amendment can be invalidated if it has the result of destroying or repealing the “basic structure” of the Constitution.

A government office memo from the P.V. Narasimha Rao administration in September 1991 set aside 10% of positions for “other economically deprived categories.” In Indra Sawhney v. Union of India, the Supreme Court overturned this judgment. The court examined the legality of the quotas in Indra Sawhney v. Union of India and Ors., carefully analyzing the idea of backwardness. As per, Dr. BR Ambedkar, the classes of people for whom reservations were to be introduced are those “communities who have not had thus far representation in the State.” Indra Sawhney, where it was believed that the Constitution allowed for “appropriate representation” rather than “proportionate representation,” explains one of the reasons why the quota limit was set at 50%.

The following is a list of some of the crucial decisions made in the Indra Sawhney case regarding reservations:

• It upheld the 27% OBC reservation with the condition that the “creamy layer” excluded.
• It declared that a backward class of citizens cannot be established solely and exclusively with regard to economic backward criteria and nullified the 10% quota for economically backward portions.
• It was decided that the reservations made for backlog or carried-forward vacancies were valid; should not exceed 50% of the annual appointments
• It was decided that reservations may only be issued for a service or category if the State was satisfied that the representation of people from the underprivileged class was insufficient.

Does the action contradict the Constitution’s basic structure doctrine?

Youth for Equality, a non-profit organization, filed a Public Interest Litigation with the Supreme Court under Article 32 of the Constitution, alleging that the legislation’s decision to grant a ten percent reservation to students from economically disadvantaged groups in public and private educational institutions violates the fundamental principles of the Constitution and supersedes earlier rulings.

The question that emerges initially is that can the basic rights be amended? This can be explained by the 1951 case of Shankari Prasad v. Union of India, in which the constitutionality of the First Amendment Act of 1951, which included Articles 31 A and 31 B, was contested. The argument against the Amendment was that it violates the rights granted by Part III, which is prohibited under Article 13(2) and is therefore invalid. It was argued that because Parliament is included in the definition of “state” in Article 12, the term “Law” in Article 13(2) must also refer to a constitutional amendment.

The next issue is whether the Constitution’s fundamental principles are violated by the Act. The solution may be found by first defining the idea of the fundamental structure before concluding. Although the courts have made various rulings in this regard, they have not defined the idea of the Constitution’s fundamental structure. The idea was debated in the well-known Kesavananda Bharati Case, in which the petitioners actually contested the legitimacy and scope of Article 368, arguing that it lacked any restrictions and so ran counter to the fundamental principles of the constitution.

Critical evaluation

The Indian Constitution establishes an “equality code” to address historical injustices and the obvious inequality in higher education and state jobs. Everyone is guaranteed equal protection under the law and equality before the law under Article 14.

In M.R. Balaji v. State of Mysore, the Supreme Court declared that the reservation should not exceed 50% and overturned the 68% restriction imposed by Article 15 (4) on admissions to medical and engineering institutes in the (then) State of Mysore. According to the rationale behind the “50% ceiling” for reservations in the M.R. Balaji case, the exception cannot supersede the rule. There is nothing to prevent the State from exceeding the “50% ceiling” for reservations if Article 16(4) does not constitute an exception to Article 16(1), provided that the total population of the underrepresented classes is not itself less than 50%. In India, nevertheless, this is not the case.

However, the Supreme Court determined in State of Kerala v. N.M. Thomas that Article 16(1), which is a component of the equality theory, allows for the reasonable classification of all people who are in a comparable situation with regard to a statute identical to Article 14[11]. In other words, even without Article 16(4) of the Indian Constitution, Article 16(1) itself enables reserves and preferential treatment.

In other words, even without Article 16(4) of the Indian Constitution, Article 16(1) itself enables reserves and preferential treatment. Article 16(4) only seeks to make explicit what is already implicit in Article 16 and does not seek to be an exception to Article 16(1). (1). The alternative argument, on the other hand, contends that Articles 15(4) and 16(4), which allow for racial and ethnic minorities in public employment and education, are “exceptions” to Articles 15(1) and 16(1)’s provisions for equality and non-discrimination, and that therefore, exceeding the “50 per ceiling” constitutes reverse discrimination. Indra Sawhney’s decision by the Supreme Court, in essence, constitutes a compromise between M.R. N.M. and Balaji Thomas. It established a compromise between nominal equality and substantive equality by reinstating the “50% ceiling” norm.

Conclusion

The Constitution has been amended and introduced in order to stay up with societal advancements. In order to assure economic upliftment for the populace and to offer benefits to those who experience unemployment and are unable to pay for their school costs, the Constitutional Amendment Act, 2019 has also been proposed and passed. The other fundamental rights and other Constitutional provisions are not in any manner at odds with the Act. It may be said that by revising the Act, the government has given all people equal rights and benefits in terms of economic advancement and has in reality acceded to the Constitution of India’s requirements.

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Citations

1. The Gazette of India.
2. Indian Constitution, art. 15.
3. Indian Constitution, art. 16.
4. Kesavananda Bharati vs State Of Kerala And Anr , 1973.
5. The Constitution of the United States: A Transcription | National Archives. (2015, November 4). National Archives. https://www.archives.gov/founding-docs/constitution-transcript
6. Indian Constitution, art. 368.
7. Indra Sawhney Etc. vs Union Of India And Others, Etc., 1992.
8. Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar, 1951.
9. M. R. Balaji And Others vs State Of Mysore, 1962.
10. State Of Kerala & Anr vs N. M. Thomas & Ors, 1975.

This article is written by Puneet Kaur, a second-year student.

INTRODUCTION

Association refers to a group of people or entities that come together to form a group to achieve a particular objective over a period of time. A person cannot evolve if he is isolated from the rest of his community. To survive in society, people are required to have the company of others with whom they can communicate. Hence, people are compelled by the need to co-exist and create connections with one another. Participation in various organizations and groups assists a person in staying in touch and being educated about the current happenings in society. In a constitutional democracy, the liberty to assemble and the freedom of association are central tenets of citizens’ lives. These liberties empower citizens to organize for the pursuit of communal goals and to connect with one another. It also gives them the right to protest, as a result, they are among the rights and liberties that are limited by any State.

Article 19(1)(c) of the Indian Constitution empowers all citizens to form organizations, unions, or cooperative societies. However, under Article 19, clause (4), the state can implement restrictions on this freedom in the interests of public order, morals, and the sovereignty and integrity of the nation. Until recently, most Western nations not only prohibited union activity but it was also considered as being an anti-social and anti-state issue in many countries. After World War I, the State took cognizance of the matter and was compelled to take significant efforts to guarantee the working class’s fundamental rights through labour and industrial legislation. Asserting upon such rights as fundamental and upholding them within a Constitution was a much more daring step. Recognizing the contemporary trends, India’s Constitution has declared the right of workers to organize unions a fundamental right.

SIGNIFICANCE OF FREEDOM TO FORM ASSOCIATIONS           

These organizations ensure that everyone has the right to organize and join unions, whether informally or formally. It is the enabling right, at the foundation of rule of law and democracy, to allow non-state entities to participate effectively in economic and social policy. It guarantees that both employees and employers are represented, which is vital for the smooth running of both labour markets and a country’s overall governance. These organizations encourage people to express their opinions and help them get to know others. They also aid their members in developing an identity and achieving a reputable standing by improving an individual’s understanding and instilling vital ideals in them.

In the case of State of Madras v. V.G. Rao, the Supreme Court held that the freedom to form groups or unions has a broad and diversified scope for its practice, and its restriction is loaded with varied consequences arising from religious, political, and economic sectors. The apex court also stated that the government has the authority to impose restrictions on such rights without allowing their factual and legal aspects to be duly tested during a judicial inquiry is a robust element that must be considered while assessing the legality of the constraints put on the exercise of the right under Article 19(1)(c).

The legitimacy of the Hindi Sahitya Sammelan Act, 1962, was questioned in the case of Damayanti v. Union of India as a violation of Article 19(1)(c). The petitioner belonged to an organization whose composition was altered due to the Act by bringing in new members. The members who willingly founded the association now were obligated to operate in the association with several other members over whose admittance they had no influence. The Supreme Court ruled that the Act infringed the rights of the people to join an organization, as granted by Art 19(1)(c). The right to create an association, necessarily entails that the person founding the group likewise has the right to continue to be affiliated with only those who willingly admit themselves to the association, the court stated.

Any legislation that introduces members into a voluntary association without allowing the members to keep them out, or any law that strips away the affiliation of those who have willingly joined it, shall be a law that violates the freedom to create an association. The Hindi Sahitya Sammelan Act does more than only control the management of the original society’s business; it also changes the constitution of the association itself. As a result, the Act breaches the freedom of the society’s founding members to form an organization, as granted by Article 19(1)(c). As a result, the Act breaches the freedom of the society’s founding members to form an organization, as granted by Article 19(1)(c).

Right to form Associations for Defence Personnel:

In the case of Ous Kutilingal Achudan Nair v. Union of India, a crucial question emerged as to whether civilian personnel classified as non-combatants, such as chefs, barbers, mechanics, tailors, etc, attached to Defence Establishments had the right to form or join organizations or unions. The appellants were affiliates of city employee unions in several facilities of the Defence Establishment, and their unions were ruled illegal by the Commandment. They claimed that the action infringed their basic freedom to form or join associations or unions under Article 19(1)(c) of the Constitution. They maintained that, while members of the unions were attached to the Defence Establishments, their employment conditions were governed by the Civil Service Rules, and so they could not be referred to as “members of the Armed Forces” under Art 33 of the Constitution.

The Supreme Court rejected the appellants’ arguments and held that civilian workers of Defence Establishments fit the character of members of the Armed Forces under Article 33 and, as such, were not allowed to organize trade unions. It is their responsibility to follow or accompany Armed Personnel on active duty, in camp, or on the march. Even though they are non-combatants and are subject to Civil Service Rules in some areas, they are essential to the Armed Forces. As a result, the Central Government has the authority under the Army Act to impose laws restricting or curbing their basic right under Article 19(1)(c).

Right to form Associations while in Government or Civil Services:

In the case of G.K. Ghosh v. E.X. Josef, Rule 4-B of the Central Civil Services (Conduct) Rules, 1955, states that a government servant must not join or continue to be a member of the Association of State Employees as soon as the recognition granted to such association is withdrawn, or if the association is formed, no recognition is granted within six months. The Supreme Court held that making the requirement of recognition of the association a right would be futile and illusory and that imposing such a requirement on the right of the association will have no bearing on the public order of the State.

REASONABLE RESTRICTIONS

As with any other fundamental rights guaranteed by Article 19, the right to associate is not absolute and may be limited to the public good. Article 19(4) specifically authorizes the State to adopt legislation that limits, abridges, or eliminates any or all the rights granted by Article 19(1)(c). Clause (4) allows the state to impose reasonable limits on the freedom to organize groups in the best interest of India’s sovereignty and integrity, civil security, and morality.

Grounds for the restrictions imposed-

• Threat to Sovereignty and/or Integrity of India; To protect the country’s sovereignty, the right to form associations can be curtailed if it jeopardizes the country’s unity.
• Threat to Public Order; To ensure the safety, public peace, order, and tranquillity of the country, the right to establish an association can be curtailed.
• Threat to Morality; This freedom may be limited when an association’s or individual’s conduct includes indecency, obscenity, or immorality.

Following are the elements of the restrictions that can be imposed-

• Only a legislative authority can impose such restrictions.
• Reasonable restrictions are required to be included.
• A judicial authority like a Judge has the authority to check for the legality of any or all the restrictions imposed upon by any such acts of the legislative authority on the following grounds; 1) Whether the restrictions are reasonably imposed or afforded by the people. 2) Whether the restrictions are being imposed for the purposes mentioned in the article.

In the case of P. Balakotaih v. Union of India, the appellant’s services were discontinued under Railway Service Rules because he was a communist party member and a trade unionist. The appellant asserted that his dismissal from service amounted to a deprivation of his freedom to organize an association. The appellant had a basic right to form or join an association or union, however, he had no fundamental right to continue working for the government. As a result, it was determined that the order discontinuing his employment did not violate Article 19(1)(c) of the Constitution since it did not preclude him from being a member of the Communist Party as a trade unionist.

In the case of Hazi Mohammad Ibrahim v. District School Board Malda, it was seen that a limitation requiring a teacher to obtain prior authorization to engage in political activity is a reasonable restriction. It attempted to prohibit teachers from being active in political institutions since it may influence their opinions on specific themes which may impede pupils’ overall education.

In the case of S. Ramkrishnaiah v. President District Board, Nellore, a government order compelling municipal teachers not to join unions other than those officially sanctioned was held to be administrative censorship on the freedom to form or join association and union and was hence unlawful.

CONCLUSION

We can hence infer that such associations, clubs, groups, and other organizations do play an important part in an individual’s life. They also play a significant role in shaping his perception and convincing him to have a larger perspective on everything that happens in society. The Constitution ensures that no citizen dwelling within the nation’s territorial boundaries is denied the right guaranteed by Article 19(1)(c). At the same time, citizens must guarantee that peace, discipline, and order remain in society throughout the founding of an organization and during their membership term. It is also vital that the establishment, participation, and even survival of such organizations do not operate as a roadblock or an impediment to the country’s advancement and development. If people participating in them have a bad or comparable goal or purpose, the democratic system would become imbalanced. It is in such cases that the state will step in to protect the welfare and well-being of the country’s population. These groups should help everyone be united, and enjoy this constitutionally granted liberty to its advantage for achieving the greater good.

REFERENCES

1. State of Madras v. V.G. Rao, 1952 AIR 196
2. Damayanti Naranga v. Union of India, 1971 AIR 966
3. Ous Kutilingal Achudan Nair v. Union of India, 1976 AIR 1179
4. G.K. Ghosh v. E.X. Josef, 1963 AIR 812
5. P. Balakotaih v. Union of India, 1958 AIR 232
6. Hazi Mohammad Ibrahim v. District School Board Malda, AIR 1958 Cal 401
7. S. Ramkrishnaiah v. President District Board, Nellore, AIR 1952 Mad 253

This article is written by Namay Khanna, a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.

INTRODUCTION

The reservation policy is the process of arranging in advance some percentage of seats for backward divisions of the society, scheduled caste, and tribes, in government institutions, jobs, etc. However reservation policy in India is an old-fashioned policy that has been carried out since ancient times, the theory of this policy is from the time when untouchability and ‘Varna’ systems were dominant in society (even though they still are) and when Hindu civilization was divided into 4 classes of Hindus:

1. The Brahmas
2. The Kshatriya
3. The Vaishya
4. The Sudra

Some communities belonged to no category and they were called untouchables. These were deemed to be impure and excluded from the other 4 classes. They were not permitted to inhabit the village and they had no social privileges. In some areas of the countries, people were convinced that even if their silhouette falls on the individual who belongs to one of the four classes, the person got impure. The savage system of the society was based on the theory of purity and impurity. It was an unbearable approach that was stalked and had a bad impact on the evolution of the people who were called untouchables. The design of reservations back at that time to be allowed to those castes of individuals was to furnish them with equal status and occasions in society and to raise them socially.

The pre-independence era blemished the dawning of reservation policy with the beginning of the Government Act of 1919. There were many mends in this act that were initiated by the Indian government at that time which conveyed many affairs of the minority. But the post-independence period had a particular scenario and the reservation policy attained even more admiration than in the pre-independence era. There was a formal presentation of the constituent assembly by Dr. BR Ambedkar who designed certain reservation articles and policies in the Indian Constitution devoted to the same purpose.

PROVISIONS IN THE INDIAN CONSTITUTION

• Article (15) (4) provisos for the evolution and growth of backward classes

Article 15(4) was instigated as an exception to Article 15(1) and (2) and was affixed with the first Constitutional amendment 1951 in the case of State of Maharashtra v. Champakam Dorairajan¹. A judgment was taken by the judge in this case which altered Article 15 and introduced a discrete clause for the improvement of socially and educationally backward classes of the society including scheduled castes and tribes. Article 15(5) was affixed by the Constitutional 93rd amendment Act 2006 that provided for the provisos for reservation of backward classes in private academic institutions. This was presented through a three-judge bench decision of Supreme Court cases T M Pai foundation vs. the State of Karnataka, Islamic academy vs. the State of Karnataka and, P A Inamdar vs. the State of Maharashtra.

Indra Sawhney v. Union of India (1992, nine-judge bench)- The court held that Article 16(4) is an authorizing provision and liberal in character while investigating whether a luscious lawyer should be prohibited from the horizon of reservation. The specification, the court noted, is an origin of reservation for allotments in services for people of backward classes.

Ajit Singh v. State of Punjab (1999, five-judge bench)- This case linked to the reservation in promotions and in case the reserved candidates, who get promotion would be authorized to claim rank over general candidates who earn a promotion at precedent in time.

• Article 16

Another article was proposed for the reservation of posts in public employment on the grounds of inhabitancy under Article 16(3) which was an exception to Article 16(2) that forbids prejudice on grounds of inhabitancy. Article 16(4) was also proposed for reservation for backward classes in public employment. Some other articles that veil the reservation policies are

1. Article 17 deals with the abrogation of untouchability.
2. Article 39A, the directive principles of state policies that guarantee equal justice to all.
3. Article 45 enforces an obligation on the state to maintain quality of living.
4. Article 332, 342 also proposed special provisos for divergent classes of people, like SC, ST, minority, etc.

While the reservation has been a vital part of the Indian legal system, a large number of people are opposed to the idea of the reservation which always triggers controversy. The chief purpose is not to inculpate reservation for minorities but to conquer the deficiency of job openings that have been produced because of the policies, especially on the basis of caste reservations.

BACKGROUND

Reservations, these days are rooted in caste is something which is opposing society and its interest. This sort of reservation is escalating hatred in society and generates an intuition of inequality between each other which is totally inconsistent with the purpose of reservation. A few years ago there was a reservation that was given to the Jain community on minority grounds but on the other side Jain community was regarded to be one of the richest sections in India and yet reservation was allocated to them. There is always a proverb that the caste system is inferior and some people are against it but at the same time, others are okay with it. This behavior is nothing but two sets of rules and hypocrite. The Government of India should take up this issue and give it a prime concern and remove this peril. The feasibility of abolition of reservation on the grounds of caste is a tough task, to eliminate it in one go is not possible but it surely can be eliminated over a span of 10 to 15 years. An expectation of bold commitment to these measures from the government for the elimination of the reservation is hoped from the society at large. Many analysts argue that the policies of the caste-based reservation have only been the critic lines in the Indian caste system and there are some politicians who have boldly elevated their concerns against the system asserting that it is not helping the reason for which it was meant and the founding father of the country didn’t visualize reservation system been arrange in a way in order to win votes.

Today events have come up to such an extent that each community senses that they have been maltreated and the requests have been refused because of this so-called caste-based reservation. Contemplating the fact of Dr. Ambedkar said that castes reservation should have been terminated in 1960 but we are still staggering under it in 2020. The key lectures of Dr. Ambedkar can be deliberately read and perceived that the allocation (quota) based on scientific social research is what sounds better with the perception of India which he thought were the reservation advantages would reach those populations that actually need it and not one who can go up on a ladder without creating efforts for it. In a simpler sense, people who have already achieved the ‘creamy layer’ do not require such kind of reservation in 2020. Unfortunately, this is not the process of working in India nowadays. Everyone can just babble about slashing down the caste-based reservation policies but when it comes to enforcing such things the big issue that lies is that 70% of the population of India belongs to the resort category and this is the figure from the 2011 report.

Therefore if any pass is taken to abolish the caste-based reservation it would clearly mean going against 70% of the population and the political party will venture not to go to that length. Therefore, it is required that Indians who wish to see the end of caste-based systems clearly go against it themselves because reservations do not solve the purpose of it. But it must also be acknowledged that it is not a utopia because there are a number of countries that have carried out this step, for example, the Bangladesh reservation system in government jobs was permanently abolished when the number of students trooped to the capital Dhaka to protest. Therefore, India should proceed towards a system free from caste where any person assures a seat in a college or government job only on the grounds of his or her merit and without any restrictions of the caste-based reservation.

ARGUMENTS OFFERED BY RESERVATIONISTS

1. Reservations are a bureaucratic demand in India.
2. Although Reservation policies do erode the grade of education but quite fair action has aided many people if not everyone from under-privileged groups to flourish and hold top spots in the leading industries of the world.
3. Even though Reservation policies do erode the standard, they are required to give social justice to the most underprivileged and vulnerable which is their human right.
4. Meritocracy is illogical without fairness. Basically, all people must be derived to a similar level, whether it uplifts a section or ease up another, despite merit.
5. Reservations have solely decelerated the procedure of “Rich becoming richer and Poor becoming poorer”.

ARGUMENTS OFFERED BY ANTI-RESERVATIONISTS

1. Intellectuals and philanthropists accept that reservation will segregate India. Reservation is tantamount to internal division because apart from being a form of caste discrimination, it also builds walls against inter-religious and inter-caste marriages. Most voters are discriminating against the newly created minority.
2. Caste Based Reservation only sustains the idea of caste in society and does not undermine it as a factor of social thought, as visualized by the constitution. Reservation is a means to fulfill narrow political ends.
3. Fair treatment can be given at a more broad level taking into account many factors of prohibition such as economic conditions, caste, gender, education, etc. The global plan of Fair treatment would be more helpful than reservations in directing concerns of social justice.
4. Assigning quotas is a type of discrimination which is conflicting with the right to
   equality.
5. As per the Mandal commission, 52% of the Indians come under the OBC category, while as per the National Sample Survey (1999-2000), this static is only 36% (32% excluding Muslim OBCs).
6. This scheme of the government has already provoked an increase in brain ooze and may annoy further. Graduates and undergraduates will initiate moving to overseas universities for higher education

EWS RESERVATION

The Central Government of India recently instigated EWS Reservation. 10% quota is given for the Economically Weaker Sections (EWS) between the General Category candidates in educational institutions and government jobs. This is implemented in the Indian Constitution (103rd Constitution Amendment Act, 2019) by including clauses for the same.

CONCLUSION

Therefore the reservation policy acquired in India with a sight to raise specific caste of people should be executed for the same reason only and not pull away the rights of people of the general class. Because the very purpose of presenting reservation is fading its essence in the 21st century. However, it is urgent to maintain the point and originality of the reservation policy, and not providing prejudice means two people reached the stairs of profit without even taking it.

REFERENCES

1. 1951 AIR 226, 1951 SCR 525.

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This article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is doing a diploma in Corporate Law from Enhelion.

Introduction

Judiciary has always played a very important role in order to protect the environment¹. There are a number of cases that have provided landmark judgment in the field of environmental law. The factor of protection of the environment has been mentioned in Article 48A of the Constitution of India as well^2. Along with Article 48A, Article 51-A (g) also mentions that “it is the duty of every citizen to protect the natural environment”. These articles were added to the Constitution after the 42nd Amendment. There are a number of Acts and legislation that ensure the protection of the environment; for instance: “The Environment (Protection) Act, 1986”, “Water (Prevention and Control of Pollution) Act, 1974”, “The Wildlife Protection Act, 1972”, “The Indian Forest Act, 1927”, and a few more. Many of these acts have experienced amendments too³. The following chapter talks about a few cases that have provided landmark judgments that had widened the scope of environmental law in India.

Landmark judgments related to environmental law in India

In ancient India, the protection of forests and the natural environment was often linked to culture, folklores, etc. It is very well known that forests and wildlife hold an important place in Indian culture⁴. With increased globalization, humans started harming the environment for serving their own purposes. But these days, a lot of measures have been taken again in order the environment. Sustainable development is one such important measure.

• “M.C. Mehta & Anr. Etc vs Union of India & Ors. Etc”⁵: This case came up with the concept of “public liability”. It is also called the “Oleum Leakage case”. This case also introduced the “Deep Pocket Principle”. The Court in this case held that no factory can carry out hazardous activities near any residential area. A new chapter was also introduced in the “Factory Act, 1948”. This was one of the most significant cases that introduced one of the main principles in the field of environmental law. This case happened after Oleum gas got leaked from a fertilizer plant. It was considered in this case that the Apex court not only is responsible to ensure the right to life under Article 21, but also to provide an eco – friendly, and pollution-free life.
• “M. C. Mehta v. Union of India”⁶: This is also known as the “CNG Vehicle case”. This case was concerned regarding the air pollution levels in Delhi. A survey had been conducted and a staggering number of 10,000 people was found who die every year as a result of this air pollution in the capital city. The petitioner, M. C. Mehta, an environment activist filed a PIL in the Hon’ble Supreme Court against the Union of India in the year 1985. According to Mehta, the air pollution levels in the capital city have increased a lot. Finally, in the year 2002, it was held by the Apex court that CNG had to be provided to the transportation sector for usage. The main purpose of the court was to maintain a balance between the protection of the environment from degradation and the unhindered transportation system in the city. A lot of diesel buses were converted to buses that were run using CNG. There were some issues regarding the usage of CNG. CNG was quite environment–friendly, but it was not a pocket–friendly or easily available option, as compared to other alternatives. The court was concerned with the condition of the environment as well as the health of the people.
• “Animal Welfare Board of India vs. A. Nagaraja and Ors.”⁷: This is an important case when it comes to the concept of animal welfare. Animal welfare is an important part of environmental protection. This case was surrounded around the sport of “Jallikattu”. It has been considered as a traditional sport where the “players” would have to claim a bundle of coins that is attached to the horn of a bull. The whole game and haphazard scenario would confuse the bull. Tackling a raging bull would bring “pride and masculinity” to the winner. This was later seen as cruel even for the bulls. It was considered that unnecessary pain was inflicted upon the poor animal. Hence, the Supreme Court decided to ban the sport but revered its decision stating that the sport would be allowed after maintaining certain protocols. Finally, in 2014, the Supreme Court had banned the sport once and for all. Sections 3 and 11 of the “Prevention of Cruelty to Animals Act, 1960” stated that it was illegal to inflict animal races. Traditions and cultural significance could also not justify such acts.

There are a lot of other cases too, that is very significant in the field of environmental law.

Conclusion

It has been concluded that there are already a number of legislations and Acts that provide laws to protect the environment. It is onto us to execute the laws now. It is high time that we take steps to provide safeguard to the environment. Due to misuse of the natural environment (both flora and fauna), lots of species of animals and plants (sharks, leopards, orangutans, Chile sandalwood^8, woolly hawthorn, etc.) have become endangered or extinct too. Issues regarding environmental protection are not restricted to India, instead, it is a global issue. The cases mentioned in the previous chapter have allowed a better understanding of the legal stance of environmental protection in the Indian context.

References

1. Sristi Raichandani, “15 Landmark Judgments on Environmental Protection”, [July 8, 2020], https://legaldesire.com/15-landmark-judgments-on-environmental-protection/.
2. “Environment law in India – an overview”, https://www.cms-lawnow.com/ealerts/1999/11/environment-law-in-india-an-overview?cc_lang=en.
3. Anupam Chakravartty, “Six environmental laws to be amended soon”, [April 7, 2015], https://www.downtoearth.org.in/news/governance/six-environmental-laws-to-be-amended-soon-49317.
4. “Environmental Laws and Constitutional Provisions in India”, http://www.legalservicesindia.com/article/1926/Environmental-Laws-and-Constitutional-Provisions-In-India.html.
5. M.C. Mehta & Anr. Etc vs Union of India & Ors. Etc, [AIR 1987 965].
6. M. C. Mehta v. Union of India, [AIR 2002 SC 1696].
7. Animal Welfare Board of India vs. A. Nagaraja and Ors., [2014 7 SCC 547].
8. Adam Vaughan, “Humans have driven nearly 600 plant species to extinction since 1750s”, [June 10, 2019], https://www.newscientist.com/article/2205949-humans-have-driven-nearly-600-plant-species-to-extinction-since-1750s/#ixzz7FUUAQy00”.

This article is written by Aaratrika Bal student at National Law University Odisha.

INTRODUCTION

Various dynasties have risen and fallen over the years, but the only thing they all had in common was the employment of the death sentence as a means of enforcing justice. In terms of international law, “King Hammurabi of Babylon was the first to codify death penalty regulations. Other types of death sentences were used over the world, such as guillotining in France, beheading in the Middle East, and electrocution in Russia, among others. Is the death penalty really the best alternative of punishment in today’s world with codified rules and awakened conscience? Despite the protests of many organizations calling for the death penalty to be abolished, it is still carried out in several countries.”[1]

WHAT IS A CAPITAL PUNISHMENT/ DEATH SENTENCE?

“A death sentence is a legal process in which the state executes a person as a penalty for committing a crime. A death sentence is a legal decision that someone should be punished in this way, while execution is the actual procedure of killing the individual.” Death sentence in India is “given in only rarest of rare cases” and in criminal offences.

CAPITAL PUNISHMENT IN INDIA

In India, the death penalty is carried out by hanging from the neck. This system has been in use since the time of the British Empire and has yet to be abandoned. “A death sentence is provided for in Section 53 of the Indian Penal Code 1860,” and High Courts have the jurisdiction to confirm death sentences under “Section 368 of the Code of Criminal Procedure.” The death sentence is applied in the “rarest of the rare” situations, which are “those in which the community’s collective conscience is so outraged that it expects the judiciary to impose the death penalty on the accused.” According to the Indian Supreme Court, incidents in which a murder is committed in its most heinous form to fall under the category of rarest of rare cases.

INTERNATIONAL STANCE ON CAPITAL PUNISHMENTS

Many international treaties advocated for the “abolition of the death penalty.”  “No one shall be subjected to torture or cruel, brutal, or degrading treatment or punishment, according to Article 5 of the Universal Declaration of Human Rights, 1948, and Article 7 of the International Covenant on Civil and Political Rights, 1966. The United Nations Economic and Social Council has pushed its member countries to abolish the death penalty, but has also stressed that those that desire to keep the death penalty must ensure that defendants are given a speedy trial.” The death penalty has been abolished in the majority of European Union countries.[2]

CASE LAWS RELATED TO DEATH PENALTY IN INDIA

“In the case of Bachan Singh vs State of Punjab (1980),[3] “Justice Bhagwati in his dissenting opinion stated that the death penalty is necessarily arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are subjected to the gallows and the rich and the affluent usually escape from their clutches. This is indeed a gross violation of Articles 14 and 16 of the Constitution.”

“In Shashi Nayar vs Union of India (1991),[4] the death penalty was again challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but the court turned it down stating that the time was not right for hearing such a plea. Also, the plea to consider hanging till death as barbaric and dehumanizing was rejected.”

“The Supreme Court of India recently issued a decision in Shatrughan Chauhan Vs. Union of India (2014)[5] that lays out certain rules for converting a death sentence to a life term.” “The same was done in the case of Union of India vs. Sriharan (2015),[6] also known as the Rajiv Gandhi assassination” case, “where the Supreme Court of India lowered the death sentence of Rajiv Gandhi’s killers to a life sentence.”

LAW COMMISION ON CAPITAL PUNISHMENTS

In its 262nd Report, “the Law Commission calls for the death sentence to be abolished in all cases save those involving terrorism.” “In addition, certain standards regarding the execution of death warrants within a specified time limit must be established.” “If there is an unconditional delay (save in circumstances of terror), procedures must be made so that the convict’s death sentence can be commuted to life imprisonment based on his mental condition.” Above all, “only the supreme creator, not the state or any other organ of the state, has the authority” to take the lives of humans on Earth.

ARTICLE 21 OF THE CONSTITUTION AND CAPITAL PUNISHMENT ANALYSIS

ARTICLE 21 OF THE CONSTITUTION OF INDIA: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”[7]

The next major breakthrough in capital penalty law was “Maneka Gandhi vs Union of India,[8] which established two important safeguards: first, that all fundamental rights are not mutually exclusive. A statute has to pass the test of Articles 14, 19, and 21 taken together in order to be pronounced constitutional.” Furthermore, “any procedure established under Article 21” must be “fair, just, and reasonable, and cannot be whimsical, oppressive, or arbitrary,” according to this ruling.

In India, there have been a variety of viewpoints on the death penalty, with some advocating for its continued use and others advocating for its abolition.

CONCLUSION

The death penalty is a crime against humanity in and of itself. “Life is a gift from God, and no government has the authority to take it away. As a result, the death penalty process should be considered unconstitutional and a violation of human rights.” The “government must analyze the negative aspects of death penalty” sentencing and take steps to remove such sections from the law. Because the death penalty process is lengthy, guilty inmates are subjected to both physical and emotional torture. “They essentially beg for death as a result of this. Any human being, whether convicted or not, should never have to confront such a position. Although the number of actual executions of inmates facing the capital sentence is decreasing, much remains to be done to expedite the process for those on death row while still adhering to India’s international obligations.”

ENDNOTES

1. Critical Analysis on Death Penalty in India, https://blog.ipleaders.in/death-penalty/
2. Retrospective Analysis on Death penalty, https://www.legalserviceindia.com/legal/article-5312-a-retrospective-analysis-of-capital-punishment.html
3. Bachan Singh vs state of Punjab, AIR 1980 SC 898
4. Shashi Nayar vs UOI, 1992 AIR 395
5. Shatrughan Chauhan Vs. Union of India
6. Union of India vs Sriharan
7. Article 21, Constitution of India
8. Maneka Gandhi vs Union Of India, 1978 AIR 597

This article is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow

Abstract

The pay gap is an issue for our country because it prohibits the country to become a superpower
in economic areas. This article prescribes the “Equal pay for equal work” and Constitutional and
Labor legislation concepts in Acts like the Equal Remuneration Act, Contract Labor, and
Factories Act, etc. The Directive Principle of State Policy defined under Part IV of the
Constitution has provision for equal pay for equal work. It also states where can be discriminated
against or not in payment. 

Introduction

Equal pay for equal work means an equal payment to someone who has been employed in the
same place and does the same work. Even the temporary worker who has done the same work in
the same shift should get equal payment in comparison to the permanent worker.
Constitutional provisions

Article 14 – Equality before the law means every person is equal in the eyes of Law there should
not be discrimination. Everyone has equal rights and opportunities . 
Article 15(1) – Prohibition of discrimination against citizens of India on grounds of caste or sex
which means no one can be distinguished and unfavorable to the person. This means the
employer will get equal payment from an employer either from a different caste or a woman .
Article 15(3) – It is the exception of Article 15 clauses 1 and 2. The state can make laws for
women and children to improve the situations of women and children . 
Article 16 – Equal opportunity in public employment .
Article 39 – It is defined that the State should direct the policies for equal remuneration to both
men and women. This means if both the parties are doing equal work then they should be paid
equally without any discrimination. If the people are in the same post or either different place
then he should get equal payment.
Article 42 – The state should ensure and make provision for the workplace should be a humane
condition for women and make provision for maternity relief . 
Article 51(A) (e) – To abolish the practices against women’s dignity .

The term equal also includes allowances benefits and promotions. The directive principles are
not enforceable by law. The state must make legislation for the prohibition of discrimination in
payment. Also, it is a fundamental right under Articles 14, 15 and 16. Various judgments have
been decided through fundamental rights.  Equal pay for equal work was first acknowledged in
the case Kishori Mohanlal Bakshi v. Union of India , in which the Supreme Court held that the
court cannot enforce the court of law. In 1987, in the case, Mackinnon Mackenzie & Company

Limited v. Audrey D coastal & others , the woman who was a stenographer was discriminated
against based on sex she paid less than men. The court held that it is discrimination against
women. When both men and women are doing the same work in the same circumstances they
should be paid equally.
Randhir Singh v. Union of India , in this case, the court held that the equality for equal work is
mentioned in directive principles and directive states and not under the fundamental right but is
considered a Constitutional goal. The court can enforce constitutional remedies prescribed under
Article 32.
State of Punjab and Ors v. Jagjit Singh and Ors , in this case, the court held that the workers
who are doing temporary work, ad hoc and daily wages should get equal payment which is given
to the permanent worker. To refuse the equal payment is oppressive, coercive and exploitative
behavior with them.

Statute related to equal pay for equal work

Workmen’s Compensation Act, 1923

• Those workers accidentally injured during work should be compensated by companies.
• Because of differences in negotiating power, women may be exploited.

Minimum Wages Act, 1948

• The state has fixed minimum wages in the territory. This means an employer cannot give less than the fixed wages.
• Workers are poorly organized & have less negotiating power in India. Because in India there is also the problem of employment so the workers are accepting the money without negotiation.

Factories Act, 1948

• The object of this Act is to improve the conditions of laborers in factories and industries.

Contract Labour (Regulation and Abolition) Act, 1970

The object was to make this Act that there should be a separate provision for utilities and fix
working hours for the women.

Equal Remuneration Act, 1976

In 1975, this was passed as equal remuneration Ordinance, 1975 and further converted into an
Act, the Equal remuneration Act, 1976. Women were not getting equal payments and working
conditions according to them. The Act made for improvement of the women condition in
remuneration. The provision of the Act is against discrimination in the recruitment and
promotion of men and women. When this Act was enacted, they considered the physical & social
burden a woman faces or the condition of the women during their pregnancy time.

In the case, Dharwad District P.W.D. Literate Daily Wage Employees Association and
others v. State of Karnataka and others. the court in this case held that Sec. 5 of the equal remuneration Act states that there shall be no discrimination against women in their appointment,
recruitment, and promotion. It means if both men and women are working in the same condition
then women should not be discriminated on these. The employer should maintain a register or
documents to avoid unjust practices. 

Code on Wages Act, 2019 

This Act considered equal pay for equal work for all genders. Under Sec.16 of this Act has given
the power to the employer that they can fix wages based on monthly, daily, or weekly but not
more than a month.

Exceptions of equal pay for equal work

This is mentioned in our Constitution in Directive Principles and Directive States. However, it is
not an absolute right. Exceptions are not mentioned but they came from the cases.

In the case F.A.I.C and C.E.S v. Union of India 13 , the court held that employers can fix
different pay scales for employees who have a similar post and work but there is a difference
between responsibility, reliability, and confidentiality.  Equal payment depends on the work that
has been done and not the volume of work.

International Perspective 

The problem related to equal remuneration is not only limited to India but is worldwide. This has
been discussed at various conventions. The Equal Remuneration Convention, 1952 states that
there should not be discrimination against equal remuneration.
The International Labour Organization (ILO) has stated that it doesn’t matter if the labor is male
or female if they are doing equal work with equal capacity, there is no requirement of the gender
pay gap. 

Gender pay gap

This means the difference between the earnings of men and women who are involved in the same
work. India ranks the last 10 in female participation. Female participation is a very low rate in
rural areas compared to urban areas. Women are not educated. This is also the reason. 

Conclusion 

In India, we have many statutes which talk about how everyone should get equal pay for equal
work. But the inequality in recruitment still exists. Court has decided in many cases that it is the
right of the employees to get equal payment. Government should organize a campaign for
awareness towards equal recruitment to labour. 

Every individual should be equally paid there should not be discrimination but employers can
discriminate based on responsibility and volume of work done by employees.

This article is written by Prachi Yadav, a 2 nd Year student from Mody University of Science and
Technology, Laxmangarh, Rajasthan.

This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. The objective of this article is to describe The Doctrine of Territorial Nexus which is covered from Article 245 to Article 255 of The Constitution of India.

INTRODUCTION

Article 245, clause 1 of the constitution of India states that, ‘Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

Clause 2, states that, ‘No law made by Parliament be held invalid on the ground that it has an extra-territorial operation.’.

The above-mentioned statement implies that State law cannot have extra-territorial jurisdiction. Thus, the Doctrine of Territorial Nexus originates from the Apex Court’s interpretation of this particular provision in context with the extra-territorial operation of a law made by the state government in India.

Explanation: The Doctrine of Territorial Nexus states, that laws that are made by a particular State Legislature are only applicable in that particular State and not outside the territorial boundary of that State, except in scenarios where there is a sufficient nexus between that State and the object. The significance of this can be determined by the Supreme Court’s observation wherein it has stated that ‘Territorial nexus doctrine, thus, plays an important part in the assessment of tax. Tax is imposed on one transaction where the operations which can produce to income may happen partly in one territory and partly in another. The question which might fall for consideration is on whether the income that arises out of the said transaction would be required to be apportioned to each of the territories or not.

Income arising out of operation in more than one jurisdiction would have territorial nexus with each of the jurisdiction on an actual basis. If that be so, it may not be correct to contend that the entire income “accrues or arises” in each of the jurisdiction.”

Judicial Pronouncements

A.H. Wadia vs Income Tax Commissioner, Bombay, 1947

 The Apex Court held, that in the case of a sovereign Legislature question of extraterritoriality of enactment can never be raised in the municipal court as a ground for challenging its validity. Further, the Court stated that legislation may offend the rules of international law, and there are chances that they may not be recognised by foreign courts also, or there might be practical obstacles in enforcing them, but these questions are of policy and domestic tribunals should not be concerned and affected by them. 

GVK Industries Limited vs. Income Tax Officer, 2011

In this case, it was questioned as to whether the Parliament is authorized to enact laws in respect of extra-territorial aspects or in causes that have no nexus with India, and furthermore, if such laws are bereft of any benefit to India?

The Supreme Court held that ‘The clue of the answer to this question also lies in the word for used in article 245(1). The Court derived the responsibility of the Parliament with the help of the word for used in article 245(1) and stated that Parliament of India is to act as the Parliament of India and of no other territory, nation or people.’ The Court derived two related limitations in this regard, which are as follows:

• The Parliament may only apply its power for the benefit of the Country as per the necessity and the laws framed by the Parliament may strengthen the welfare of the people in other territories too but the benefit to or of India will remain the central and primary purpose.
• It is also stated that the laws enacted by the Parliament with respect to extra-territorial aspects or causes that do not have any, or maybe expected to not have nexus with India, defy the first condition. The Constitutional Bench headed by Sudershan Reddy J, denied the answer of question logically and stated that the Legislature’s powers to frame laws pursuant to clause (1) of Article 245 might not reach to those extra-territorial aspects or causes that have not any impact on or nexus with India.

State of Bombay vs RMDC

Facts of the case: The respondent was not residing in Bombay (Mumbai) but he conducted competitions with prize money through a newspaper printed and published from Bangalore (Bengaluru) having a wide circulation in Bombay.

All the necessary activities like filling up of the forms, entry fees etc. for the competition took place in Bombay.

The State Government sought to levy a tax on the respondent for carrying on business in the State.

Issue: The question for decision before the Supreme Court was if the respondent, the organizer of the competition, who was outside the state of Bombay, could be validly taxed under the Act.

Judgment: The Supreme Court held that as most of the activities which the competitor is ordinarily expected to undertake took place in Bombay. Thus, it was sufficient to show that there was an existence of territorial nexus and based on this the State Government had the authority to levy a tax on the respondent. 

State of Bihar vs Charusila Dasi:

Facts of the case- The Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the protection and preservation of properties pertaining to the Hindu religious trusts. The Act was made applicable to all trusts any part of which was situated in the state of Bihar.

The Respondent created a trust deed of the properties of several houses and land in Bihar and Calcutta. The trust is situated in Bihar.

The issue-the main question for decision was whether the Act applies to trust properties which are situated outside the state of Bihar. Can the legislature of Bihar make a law with respect to such a trust situated in Bihar and other properties appertaining to such trust which is situated outside Bihar?

Judgement: The Supreme Court after applying the doctrine of territorial nexus stated that the Act had the scope of affecting the trust property situated outside Bihar, but appertaining to a trust situated in Bihar where the trustees functioned. It further stated that the Act aims to provide for the better administration of Hindu religious trusts in the state of Bihar. Therefore, the trust is situated in Bihar, enables the State to exercise its legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust.

Conclusion 

By the above interpretation and cases, we can conclude that the Doctrine Territorial Nexus does not debar a State law from having an extra-territorial jurisdiction. It simply lays down that if a State wants to extend its laws beyond its boundary then it will have to satisfy the Court that there is a sufficient nexus between the subject matter concerned and the state making the law.