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.

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.

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. 

Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the legal basis for a lockdown. He has examined the Epidemic Diseases Act and the Disaster Management Act at length with regards to the topic. To conclude he has looked at the factors to be improved so that we can better prepare for the next pandemic.

INTRODUCTION 

“Unprecedented events call for unprecedented moves”. This statement has been the entire basis of the lockdown which began on 24^th March 2020 and is still continuing. The lockdown began as an initiative to counteract the Corona Virus which was named as a global pandemic by the World Health Organization (WHO). Before the lockdown, the prime minister imposed a Janta curfew on the country where people were restricted from coming out of their homes and which gave a flavour of how the next few months will turn out to be. In this article, we are going to be examining the legality of imposing a lockdown. An interesting fact about the lockdown was that after about a century the Epidemic Diseases Act was initiated to counteract the virus and provide steps to be taken by the government to impose the lockdown. Another act that played a key role was the Disaster Management Act (DMA) of 2005. 

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005 

The DMA 2005 defines a disaster as: 

a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. 

According to this definition natural disasters such as earthquakes or tsunamis are included but instances such as epidemics or a virus breakthrough aren’t. This essentially means that the state couldn’t have imposed a lockdown under this definition. But the state classified the epidemic as a notified disaster which opens up the opportunity to classify it as a disaster and also provide assistance to the victims and states under the State Disaster Response Fund (SDRF). 

After announcing the lockdown, the government provided states with an action plan of how the lockdown would play out. This was done by the government pursuant to section 10 of the DMA which reads: 

The National Executive Committee shall assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster management in the country. The section also provides for the steps to be taken by the central government to handle the situation which are as follows: 

1. Act as the central agency for making disaster management pans and ensuring execution. 
2. Inform different ministries of the plan ahead 
3. Monitor the implementation of the plans etc. 

There are many more initiatives and the authority responsible for executing these actions is the National Executive Committee which will be headed by the secretary to the government of India who has administrative control over the disaster management branch. This will also include officers from different ministries of the government including water, sanitation etc. who are going to be affected during the time of a disaster. The plan of action on how the executive committee will function and their powers and responsibilities will be dictated by the central government. 

EPIDEMIC DISEASES ACT, 1897 

In a situation where there is no explicit law in place, the diseases act made the lockdown legal as per section 2-A of the said act. Section 2-A of the act reads: 

When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Thus, the use of this act was extremely important with regards to the lockdown because as per this section there are two ingredients to be fulfilled

1. When the central government is satisfied that India is affected by an epidemic or a disease which cannot be controlled or which is spreading at a rapid pace. This was well satisfied as the Corona cases slowly started climbing in the middle of February. 
2. There was no law or provision in place to handle such a situation because the last epidemic of this scale had occurred a century ago which was popularly known as the Spanish flu. 

Hence with these two provisions being fulfilled the Epidemic Diseases Act, 1897 was used to impose the lockdown. 

CONSTITUTIONAL PERSPECTIVE 

There were many lawyers and jurists who pointed out that the term “Lockdown” has nowhere been defined under the Indian Law. Though there was no provision which defined this term the government was using the term as a means to restrict people’s freedom under article 19(1) of the constitution. But as seen above the imposition of the lockdown was under section 2-A of the diseases act which means there was a statutory basis for imposing the lockdown. 

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES 

The fundamental problem attached to any health emergency in the country is that the term “national calamity” has not been defined anywhere in any provision. There were efforts made by the government in 2001 to come up with a definition and insert it as a statutory provision but the committee responsible could not arrive at a decision. There is a growing need for this definition as it has been requested by the states a number of times. In fact, in 2013 when the Uttarakhand floods occurred the state government requested for enabling the provision. Another request was made in 2018 when the Kerala floods took place and the politicians in the government asked for the definition. Now the need has again risen for a definition and this should be the foremost objective of the government once the epidemic is resolved. 

Another aspect is to revamp laws that were made more than a century/decade ago. The Epidemic diseases act and the Disaster Management Act need some categorization of a national fund. They also need to take into consideration new steps to be performed once there is a virus outbreak. There needs to be specific laws in place to administer medical treatment on patients and to provide medical aid in the times of a crisis. 

“If all these steps are followed, we are looking at a situation where the world will live to see another day.”

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This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. He has tried to define the sources and framing of the Indian Constitution in this article.

INTRODUCTION

Constitution is the system of basic principles which governs a country, state, company, or the like. It is the backbone of our country’s democracy. Indian Constitution is the longest written constitution in the world containing ​395 Articles, 22 Parts and 12 Schedules.​ India’s constitution was drawn up by a Representative Assembly. The Assembly, under the chairmanship of Dr. B.R.Ambedkar, formed a drafting committee to create a constitution for India. The first meeting of the Assembly was on 9 December 1946. On 26 November 1949, the Indian Constitution was adopted and came into force on 26 January 1950.

After ransacking all the world’s major constitutions, the Indian Constitution was formed. The sources of the Indian Constitution are:-

1. United States of America

● Impeachment of president:- Article 61 of the Constitution calls for the President of India to be impeached. The President may be disqualified from office for breach of the Constitution by impeachment. Impeachment proceedings may be levied at any Parliament house.

● Removal of judges:- Article 124(4) of the Constitution allows the President to remove a judge for proven misconduct or incapacity if the parliament approves a majority of the total membership of each house for impeachment and not less than two-thirds of the members of each house present.

● Fundamental Rights: Articles 12 to 32 of the Constitution of India include all the fundamental rights:- Basic rights are the fundamental human rights given to the country’s people in order to ensure them of an equal place in society.

● Judicial independence:- The idea of judicial independence is that the judiciary should be separate from other government branches.

● Preamble:– The Preamble is an introduction to the Constitution. It guarantees justice, freedom, equality for all Indian citizens, and fosters fraternity among the people.

● Judicial Review: The Judicial Review provision gives the judiciary an upper hand in interpreting the Constitution. Therefore, the judiciary can annul any order by the legislature or executive if that order conflicts with the country’s constitution

● Functions of president and Vice president:- The President of India, is the head of state of and the commander-in-chief of the Indian Armed Forces.

● Article 63 of the Indian Constitution states that “There shall be a Vice President of India.” The Vice President shall serve as President in the absence of a President by reason of death, resignation, impeachment or other circumstances. India’s vice president is now ex officio secretary of Rajya Sabha.

2. The United Kingdom

● Single citizenship:- India’s constitution grants the country’s residents single citizenship. The residents of the country are all citizens regardless of the states or territories in which they live.

● Legislative procedure:– Legislative proposals shall be brought in the form of a bill before either Parliament House of India. A bill is the draft legislative legislation that, when passed by both parliamentary houses and approved by the President, becomes a parliamentary act.

● Rule of Law: This essentially states that a State is governed by the laws of that country, not by the representatives or the citizens and it states that everybody is equal before the law; including the ones who make it. Article 14 of the Constitution of India codifies the rule of law

● Cabinet system:- A group of persons appointed by a head of state or a prime minister to head the government’s executive departments and serve as official advisers.

● Parliamentary form of government:- The President is the head of state, and the head of government is the Prime Minister. In such a form of government, a cabinet of ministers, headed by the Prime Minister, governs the country. The Parliament consists of two houses – Lok Sabha and Rajya Sabha.

3. IRAN

● Directive Principle of State Policy:- The Directive Principle of State Policy is stated in Part IV of the Indian Constitution, and it explicitly states that it is the State’s responsibility to follow certain principles in the law-making process. There are three major types of these concepts – Democratic Guidelines, Gandhian Guidelines and Liberal Intellectual Guidelines. Ireland is also borrowing the process for appointing members to the Rajya Sabha

● The method of the election of the head of the state i.e the President

4. Australia

● Article 108:- The joint sitting of both the houses in some cases.

● Concurrent list:- It includes the power to be considered by both the union and state government.

● Freedom of trade and commerce:– Trade and commerce freedom within the nation and between States. Sections 301 to 307 of the Indian Constitution set down the same provisions

5. France:- ​The Indian preamble borrowed from the French Constitution its principles of liberty, equality and fraternity. In the tradition of France’s Constitution, the Indian state came to be known as the ‘Republic of India.’

6. Canada

● Federal system with a strong central government.

● Power-sharing between the central government and state governments

● The advisory jurisdiction of the Supreme Court

● Appointment of State governors by the Centre

7. Soviet Union (USSR)

● A Constitutionally appointed Planning Commission to supervise the economic growth.

● The Fundamental Duty, given in Article 51 A(g):- Mentions the duty of the citizen to protect the environment.

8. South Africa​ :- Gave us the provisions of the amendment process and the election of Members of Rajya Sabha

9. Germany​:- Gave us an immediate clause for the suspension of the fundamental rights.

10. Russia:-​ Idea of Social, Economic, and Political Justice in Preamble.

11.Government of India Act 1935

● Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

● Provincial Autonomy:- Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

Framing of the Constitution

India’s Constitution was adopted by a Constituent Assembly formed under the 1946 Cabinet Mission Plan. The Constituent Assembly formed 13 commissions to frame the Constitution. A draft Constitution was drafted by a seven-member drafting committee under the chairmanship of Dr B R Ambedkar on the basis of the reports from these committees. In January 1948, the drafting Constitution was released and citizens were given eight months. After the citizens, the press, the provincial assemblies and the Constituent Assembly had debated the draft in the light of the suggestions received, the same was finally adopted on November 26, 1949, and signed by the President of the Assembly. Thus it took 2 years, 11 months and 18 days for the Constituent Assembly to complete the task. And as I have discussed above the Indian Constitution is borrowed Constitution. The legislative system, common citizenship, rule of law, Directive state policy etc. all are borrowed features of the Indian Constitution. The Constitution of India incorporated the best features of a number of existing constitutions.

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Delegated Legislation in India. Also, she has tried explaining the major issues with the same that needs to be tackled. And in conclusion, she has tried putting forth the contemporary situation regarding a valid delegated legislation.

What is Delegated Legislation?

Legislation, the law-making process, can be either supreme or subordinate. While supreme legislation is the one that flows directly through the sovereign; subordinate legislation includes every other organ as its maker other than the sovereign power. On one hand, as the name suggests, supreme legislation cannot be annulled or controlled by any other lawmaking authority, which is not the case with the subordinate legislation.

To get a simpler idea, the parliament in India is a supreme legislative body, while any other authority making law will be considered a subordinate source of legislation. Delegated legislation is one such important and emerging example of subordinate legislation.

What exactly means by the term ‘Delegated Legislation’?

Black’s Law Dictionary defines ‘Delegation’ as “the act of entrusting another with authority or empowering another to act as an agent or representative”.

Thus, Delegated Legislation comes down to how the Legislative authority entrust other departments of the government itself to make law instead. Also known as Executive Legislation, Delegated legislation refers to where, unlike its usual function of executing’ the law, the executive branch makes laws. A law made by a delegated authority is the same as an act passed by the parliament. Since time immemorial, there have been several reasons for the evolution of such a kind of legislation.

The concept of a Welfare state has multiplied the functions of a government, including those of lawmaking. The surging need for law has made the process way too lengthy for the lawmakers to do alone. And that’s where Delegated legislation came into existence. Not just it shared the burden of law-making subject matters, but also gave the legislative to elaborate and discuss on more delicate and critical issues.

Is it prospective or Retrospective?

One of the earlier issues regarding Delegated Legislation that was posed before the judicial authorities was whether it stood a prospective or a retrospective effect. However, instead of handling situations factually, the Hon’ble Supreme Court of India went ahead to lay down principles regarding the effects of such delegated legislation in the case of Federation of Indian Mineral Industries and Ors. v. Union of India and Ors. It laid down three basic principles concerning the subject:

• (i) In the case of Hukum Chand v. Union of India, the first principle was laid down which stated that only if there was any express or implied authority from the parent statute, the delegating authority, i.e. Central Government or the State Government can make such delegated legislation into retrospective nature.
  
• (ii) The 2nd principle was laid down in case of Panchi Devi v. State of Rajasthan where it was stated that originally a delegated legislation is always prospective in nature and thus no right or liability emerging out of it can have a retrospective effect.
  
• (iii) Finally, in case of State of Rajasthan v. Basant Agrotech Ltd, It was held as the third principle that as far as the delegated law was regarded as a fiscal statute, a tax or fee could not be levied unto people in absence of an express provision. Only on the pretext that a delegated authority made the law, the imposition of fiscal duty cannot be made ipso facto.

What controls it?

The main purpose of a delegated legislation is to supplement and not to supplant the law. However, such legislation has its own inevitable evils. To safeguard such laws, there are certain ways through which delegated legislation can be controlled. These ways of control are divided into two, direct and indirect. While direct controlling includes control and supervision of Parliament; the indirect control includes the judicial control and review process. One hand the parliament always has the general control to alter any bill before its made into law. Also, after such laws are made by some other authority, the parliament always has the power to amend or repeal such law if it does not serve the purpose why the delegation was made in the first place.

On the other hand, the judiciary has the power to declare any law void that goes against the law of natural justice and good conscience. Also, the delegated law which is ultra vires in nature can be held repugnant by the judiciary without being able to annul or amend it. There are other indirect controls over a delegated legislation as well. This includes giving the delegation to a trustworthy authority to avoid any defect; publicize the law effectively to get a vigilant public opinion to avoid any arbitrariness, and; taking experts’ opinions on such laws to avoid any ‘blanket’ or vague legislation.

Benefits

After understanding the controls over delegated legislation, now we move on to another important question. ‘Why Delegated Legislation?‘

The contemporary societal needs have made the law-making procedure too complicated for any ordinary person. While it is a delicate issue at hand, there are certain benefits that make delegation the best possible way of making supplementary laws. Here are the reasons why delegated legislation works in India more efficiently:

• Time-Saving – In a large democracy like India, the legislature is always burdened at the first instance. By enabling delegation to the executive to make subordinate law saves time for the parliament to instead work on more complicated issues.
• Access to special expertise – In most of the cases, the members of parliament are unconnected to the fields they are making laws in, and it is possible for them to make bills defective at their outset. Delegation to departments having an expertise in the required field thus not only saves time on unnecessary defects but also makes the process faster since the time given for drafting bills is anyways inadequate.
• Flexibility to law – In no case can the lawmakers anticipate the future contingencies that may arise and challenge the law which is in making. Delegating the law-making power to the department concerned can help to add details that might help in avoiding such unforeseen contingencies. Thus, such delegations allow ample scope to amend through swift actions in cases of emergency owing to its gap-filling details to the changing needs of the society.

Disadvantages

Despite the benefits like reducing workload and adding expert details, delegated legislation poses certain threats to the supreme authority of legislation that even the controls are inadequate to handle. Some of them include:

• Legality – The most basic criticism that this legislative kind receives is its lack of legality. Firstly, the laws are supposed to be made by the people democratically elected. However, in such legislations, the laws are instead made by people not directly elected to the House of Commons, thereby contrasting the democratic setup of the state. Secondly, this, in turn, allows for expropriation of the legislative by the execution, thereby challenging the doctrine of separation of powers.

• Accountability – In normal circumstances, the legislative is answerable for the defects and lacunas in the laws made. However, when laws are made by unelected delegators, the accountability drops down to a specific ministry, thereby eroding the constitutional role of the parliament. Also, in the process, it unveils the inability of the parliament to check upon the law owing to its lack of expertise on the concerned law.

• Inadequate Publicity – A lawmaker is required to publicize the law to the general public in order to fulfil the principles of natural justice and good conscience. However, the problem with delegated legislation is that there is no mandate to make enough arrangements for its publicity for the general public. Also, even if the arrangements are made, the words used by the concerned authorities are too complex to be deciphered by the common public. This, in turn, is a major drawback for states where ignorance of the law is not an excuse.

• Inadequate Control – Despite such delegation being authorized by the legislation itself, the control over it is lacking the expected vigilance. Neither the legislative have the time nor the expertise to keep a check on such laws. In the first place, such delegated legislations have to be laid down before the parliament for an informed approval. However, one of the major limitations to such delegation is there is no adequate control to ensure that the delegated legislation is closely surveilled upon, thereby checking upon the administrative authority making it. In other words, there is a lack of parliamentary check and control over the delegated legislation which in turn makes the executive wing creating it go uncontrolled.

To curb these demerits, prima facie the authority should be given to a trustworthy subordinate department and nothing less than that. At the time of sanctioning of such law, the delegating authority shall be consulted. Also, the publicity of such law should be unprecedentedly made on a more alarming scale allowing the public to give their feedback which can further be used to amend or revoke such law. Prior to its coming into force, all such laws should be completely checked and discussed upon by the legislative. In case, the law avoids such deliberate discussion, the judicial review and supervision control will thereby minimize any chance of them being defective.

What cannot be delegated?

While many rules, regulations or by-laws in India are a product of delegated legislation, there is still a circumference of scope within which only such delegation can be made. Not everything and anything can be delegated to the executive.

In the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, It was held that the parliament cannot delegate what construes ‘essential legislative features’ which basically means deciding upon the legislative policy and then converting it into binding regulations. Therefore, what can be delegated is only what comprises the ‘non-essential’ functions of the legislative. Also, it held that since India followed the English model of parliament, which thus made the executive accountable to the legislative, and thus the separation of powers didn’t exist in India. This in turn validated the principle of delegated legislation.

In the case of Ajoy Kumar Banerjee v. Union of India, The principle of Delegated legislation was laid down as, “This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.” The most enchanting problem that the delegation of legislative powers faces is its validity. In the most controversial and infamous case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, the three tests for a valid delegated legislation were laid down:

1. It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
   
2. Such power of delegation is not negated by the instrument by which the legislative body is created or established.
   
3. It does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

Only if these tests are passed by the delegation, will the delegation be valid.

• It was in this case that the ‘Doctrine of Abdication’ was propounded by the judiciary.
• It held that the parliament cannot completely abdicate itself by creating a parallel authority and can only delegate ancillary functions. Instead, it has to make sure that the executive only works as a subordinate authority and does not become a parallel to the legislative. Thus, when the delegated law is ultra vires, it ipso facto means that the legislature has abdicated its ‘essential’ functions.
• The Court was also of the view that being a subordinate, its existence was subject to the legislature’s authority conferred upon it, and thus the legislative can dysfunction the same whenever it desires. Also, no delegated legislation can be held unconstitutional or repugnant only on the pretext that it was not made by the legislative but other authority authorized by it. Thus, even though politically it seems to elude the electorates’ trust, the delegated legislation does not become constitutionally invalid.

Conclusion

Sir Cecil Carr remarks, “The legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”. Delegated Legislation permits the executive to pass the law rather than the parliament. It is often argued that India follows the principle of ‘delegatus non-potest delegare’ meaning that there is a prohibition on delegation of power by the parliament since it is the one who itself has the delegation work from the supreme law to make laws for the state.

However, in the In re Delhi Laws Act case, the court took the view that delegation was a part of legislative functions, and since India doesn’t follow the stricter form of Separation of powers, this principle of ‘delegatus non-potest delegare’ does not apply in India. Thus, delegated legislation is a valid legislation unless limited by the guidelines lay down by the Hon’ble Supreme Court of India in the form of the three tests. As for the demerits such legislation poses, Dr. C.T. Carr has already suggested that the safeguards have to be exercised against the otherwise inevitable evils of the delegated legislation.

Delegated Legislation, if handled carefully, is a boon for any welfare state. Its features of being made by an expert ministry and having detailed technicalities, makes it a better version for having timely speedy laws as per the changing needs of the society.

References

• Black’s Law Dictionary
• Manupatrafast.com

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“Wars are not won in a day”

This Article is written by Shantam Patil pursuing BA.LL.B from HNLU, Raipur. In this article, he has discussed the legality of lockdown amid Coronavirus with the reference of Draconian Law, an Athenian law scribe under which small offences had heavy punishments.

Introduction

On 11th March 2020, a 123-year-old law (so-called draconian law) was implemented and came into force by the authority of the President and Government of India.

Karnataka was the 1st Indian State to implement this law. Then after many States like Maharashtra, Delhi and others also joined the league and were followed by many others. A series of drastic and rapid events then took place in our country. People ran to the shopping malls and grocery markets, causing a tremendous situation. A heavy police force was then deployed to control the situation. Resulting in many arrests and quarrels between the public and the authorities.

Finally, Prime Minister Narendra Modi came out and announced the total lockdown in India for 21 days on 24th March 2020 at 8 pm and it started functioning from the next day onwards i.e. 25th March 2020. All Economical and other beneficial activities stopped and there was no exchange. India shut its $2.9 trillion (£2.3tn) economy, closing its businesses and issuing strict stay-at-home orders to more than a billion people. Air, road, and rail transport systems were suspended.
Then the second lockdown was announced on until May 3rd and lastly the on 01st May the GOI extends nationwide lockdown further by two weeks until 17 May.

History

Historically it weighs very much important because it is the first-ever all-over nationwide lockdown after Independence of India. Many situations like this occurred in India and also people of India fought with that and survived. The first-ever known situation like this happened during the British regime over India in the year 1897. There was bubonic plague spread all over the city of Bombay (now Mumbai) and the British came up with the Epidemic Diseases Act, 1897.

It is a Pre-independence era, A 123-year-old law that was enacted on the 4th of February 1897. It was evolved by the British Council to tackle dangerous epidemic diseases and was used to prevent the spread of the outbreak of the bubonic plague in India, particularly in Bombay in 1897. This act gave draconian powers to the colonial government which allows British authorities to detain any person and at any time, also it allows for medical examination of the detainee.

While introducing the Epidemic Diseases Bill in the Council of the Governor-General of India in Calcutta for ‘better prevention of the spread of dangerous epidemic diseases’ John Woodburn, the council member who introduced it, himself considered the powers mentioned in it as ‘extraordinary’ but ‘necessary’. Woodburn emphasized that people must ‘trust the discretion of the executive in the grave and critical circumstances.’ 

This law proved to be very stringent for Indian freedom fighters and resulted in the arrest of many freedom fighters, one of them was Bal Ganga Dhar Tilak. He opposed this act and he used the term “Military Terrorism” in his newspaper Kesari for this pre-independence draconian law.  
The Act has, since then, been invoked to fight dengue and malaria in cities like Chandigarh in 2015, cholera in Vadodara in 2018.

Current Scenario

Indeed, there is no doubt that this lockdown is completely legal and the Constitution of India provides for this. The Disaster Management Act provides for a National Disaster Management Act,2005. This is also the first time a nation was shut under the provisions of the Disaster Management Act,2005. This is also the first time a central government has issued directions of this magnitude to the states. The Disaster Management Act provides for a National Disaster Management Authority and section 6 of the legislation deals with powers of the authority from which the authority has issued the directions to the state and central governments.

Section 6(2)(i) of the Act authorizes the National Disaster Management Authority, headed by the prime minister, to take measures for “the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. The Act also provisions for a national executive authority, which exercises powers to issue guidelines that will be in effect during the lockdown. The Disaster Management Act also casts a duty on the states to follow the directions of the NDMA as mandated under Section 38 of the Disaster Management Act.

There are other acts also which the government can exercise in situations like – war, state emergency, and financial emergency. And these are: –
Article 352 of the Indian Constitution which provides that the President of India can declare emergency in situations like war, external aggression, or armed rebellion.

Article 356 of the Indian Constitution provides that the President of India can declare state emergency when he is satisfied that the state cannot further be carried out according to the procedure established by the law.
Article 360 of the Indian Constitution provides for the declaration of financial emergency by the President of India when he felts that there is financial instability.

Cause and Effects

For a country whose population is 1.35 billion and also stands 2nd in terms of population.

Certainly, the nation-wide lockdown has proven to be more useful for our country and has helped to tackle the Novel Coronavirus. The reason why we are doing a far better play in the case of positive coronavirus patients than other powerful nations is because of the lockdown imposed all over India by the Government of India.

Also, it has attacked the economy of India very badly and some sources confirmed that it may be possible that a situation like in 1929 happened to cause a major outbreak to the economy that can happen due to this crisis.
Many of the contracts made between two parties to a contract that requires physical attention and supervision shall become void because of the nationwide lockdown and curfew-like situation. This has been provided in Section 56 of the Indian Contract Act, 1872 the doctrine of frustration. It says that “An agreement to do an act impossible in itself is void. And the same has happened. People cannot leave their house and so they are unable to carry out the performance of the contract they may have made.

All the upcoming examinations which were going to be held are cancelled and the board results of Students are delayed due to coronavirus. This would cause a severe drawback in the academic performance of fellow students of the country. Many universities and schools have started online classes for their students. And the government is launching many e-platforms for education. But only the students living in the urban area would be getting benefits from this and people living in the rural area could not because of the poor internet connectivity issues.

Many NGOs, Communities, and Social institutions are coming forward to help and giving large amounts of donations to the people in need. The Government has also exempted common people from various taxes which they pay in a normal situation.

Conclusion

The Government of India is doing its best to stop the spread of Coronavirus in India by taking harsh measures like lockdown, the imposition of the Disaster management act, and Epidemic diseases act. Also, the Central government is cooperating with all the state governments to provide relief and provide assistance to the needy people. India has entered into the third phase of lockdown. This is the situation in which a country requires contribution from every citizen. This is the time that people have to unite and fight against this deadly virus. Now, the time has come that every individual unites together and contribute to fighting against coronavirus.

References

• https://www.bloombergquint.com/law-and-policy/the-legal-process-behind-the-21-day-national-lockdown-order
• https://www.bbc.com/news/world-asia-india-52255011
• Indian Contract Act, 1872

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This article has been written by Nidhi Chillar, Marketing Head and Co-editor at Lexpeeps.in

INTRODUCTION

Several categories of the Citizens have been defined under Part – II of the Constitution of India. A citizen of the state is a person who enjoys full membership of the state. The Citizens of the country are different from aliens and mere residents. Citizens have all the rights provided by the state which may not be available to aliens and residents. For example, in India, the aliens don’t enjoy all the Fundamental Rights, the right to vote is available to the citizens alone. Citizenship inheres only in natural persons and not in juristic persons, like corporations.

What is Citizenship

Citizenship refers to the state of being recognized as a citizen of the state. Citizenship ensures that the person is a member of the state. It further provides the social and political rights to the citizens. A citizen has the right to take part in the governance and administration of the state.

Difference between Citizenship, Nationality, Overseas Citizenship and Resident

Nationality

Nationality refers to the status of belonging to a particular nation. Thus, the person enjoys the nationality of the place where he is born. For example, a person born in India, automatically acquires Indian Nationality, however, in order to obtain the citizenship of a country, a person is required to apply for it, whereas, the nationality is automatically vested on a person, he need not apply for it. A national of one country may apply for the citizenship of a different country. Thus, one can change his Citizenship but can not alter his/her nationality.

Overseas Citizenship

Overseas Citizenship is granted to the people who are not ordinarily the citizens of the country. Thus, the person of India who migrated to other countries except for Pakistan and Bangladesh and has obtained foreign citizenship is awarded overseas citizenship. This should not be confused with dual citizenship. Overseas citizenship is provided only if the home country allows dual citizenship in some form or the other. However, the Overseas Citizens cannot enjoy all the rights which are provided to the citizen of the country for example

1. Overseas don’t have the right to vote.

2. He is not eligible to obtain an Indian passport.

3. One can not contest the elections of Lok Sabha, Rajya Sabha, Legislative Assembly or Legislative Council.

4. A person can not hold constitutional posts like President, Vice-President or the Judge of a Court.

5. He is not eligible to apply for government jobs.

6. He can not acquire the agricultural or plantation property but can inherit the same.

Resident

A resident is a person who resides in a country. A resident is not always the Citizen of the country. A foreign national residing in India can be termed as a Resident of India but not necessarily the Citizen of India unless he acquires Citizenship.

What are the different modes of acquiring Citizenship

Article 5, 6 and 8 of the Indian Constitution specifies certain methods by which a person can acquire the citizenship of India. These are discussed below:

By Domicile

Article 5 lays down two conditions for citizenship

1. A person must have the domicile in the territory of India before the commencement of the Act.
2. He must fulfil any of the three conditions given below:

• He must have born in the territory of India, or
• Either of his parents must have born in the territory of India, or
• He must have been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement.

‘Domicile’ refers to the intention of residing in a country for an indefinite period.

The domicile is of two types:

1. Domicile of Origin
2. Domicile of Choice

1) Domicile of Origin

Every person is born with the Domicile of Origin. The domicile of origin is received by him at the time of his birth. The basis of obtaining such domicile is the paternity or maternity. Thus, a child will acquire the domicile of the same country to which the father was domiciled at the time of the child’s birth. The domicile of origin continues until a person acquires the domicile of choice. Once the domicile of choice is suspended then he again obtains the domicile of origin. In the case of a posthumous child, the child will have the domicile of the country to which his father was domiciled at the time of death.

2. Domicile of Choice

A person can acquire the domicile of choice by fulfilling two conditions:

a) Residing in a particular place

(b) Intention to reside permanently or for an indefinite period.

It must be noted that a child whose parents are unknown gets the domicile of the country in which he is found. After the marriage, the wife acquires the domicile of the husband. However, the case is different if they are judicially separated. In India, a person can not have two domiciles.

Citizenship by Migration

Article 6 of the Constitution of India provides that any person who has migrated to the territory of India from Pakistan shall be the Citizen of India at the commencement of the Constitution of India. For the purpose of Citizenship, people have been classified into two categories:

1. Those who migrated to India before 19th July 1948
2. Those who migrated India after 19th July 1948

The people who have migrated to India before 19th July 1948 have to fulfil two conditions in order to obtain citizenship:

1. The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
2. The person migrated to India has been ordinarily residing in the territory of India since the date of the migration.

The people who have migrated to India after 19th July 1948 have to fulfil the following four conditions

1. The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
2. The person has applied for citizenship.
3. He has resided in India for 6 months
4. He has been registered as a citizen of India by the officer appointed by the Government of the Dominion of India.

Citizenship by Registration

Article 8 of the Indian Constitution provides that the persons whose parents or grandparents were born in Indian but residing abroad can obtain the citizenship of India by registration.

Persons Voluntarily acquiring citizenship of a foreign state

Article 9 provides that any person who has voluntarily acquired the citizenship of a foreign state shall not remain the citizen of India. The cases of voluntary acquisition of foreign citizenship shall be dealt with by the Government of India under the Citizenship Act, 1955.

Rights of Citizens

Certain rights are available only to the citizens of India and not the aliens or foreign nationals. These rights are:

• Right to Vote
• Prohibition of discrimination on the basis of race, caste, sex, place of birth. (Article 15)
• Right to Equality of opportunity in matters of public employment. (Article 16)
• Protection of Freedom of Speech and Expression. (Article 19)
• Protection of language, script or culture of the minorities. (Article-29)
• Right of minorities to establish and administer educational institutions of their choice.

Power of Parliament to make laws with respect to citizenship

Article – 11 of the Indian Constitution provides that the Parliament can make laws related to the acquisition and termination of citizenship and matters relating to citizenship. In exercise of this power, the parliament enacted the Citizenship Act in 1955. Several changes were made in the Act in 2003 and 2005 to introduce the concept of overseas citizenship of India.

References

• V.N. Shukla, Constitution of India 44 (13th ed. 2017)
• State Trading Corpn. of India Ltd. v. CTO, AIR 1963 SC 1811
• Anmol Goyal and Sumit Gyal, ​Concept of Domicile, ​1 JUSIMPERATOR, 5 (2017)
• Pradeep Jain v. Union of India, (1984) 3 SCC 654
• D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334
• Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614
• State of U.P. v. Rehmatullah, (1971) 2 SCC 113

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