Tag: constitutionlaw

Citation

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

Decided

6th September 2018

Petitioners

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

Respondent

Ministry of Health, represented by Tushar Mehta.

Bench

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

Issues

Constitutionality of Section 377 of IPC.

Introduction

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

Historical Backdrop of Homosexuality in India

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

Judicial Precedents giving rise to Navtej Singh

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

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

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

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

Rise of Navtej Singh Johar- Important observations

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

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

Key takeaways from the judgment

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

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

From Navtej to the present- challenges persist

1.     Legal hurdles with other laws-

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

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

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

2.     Judicial and governmental responses-

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

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

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

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

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

4.     Conferring Reservations- the road ahead-

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

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

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

5.     Protection of Transgenders Health-

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

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

Conclusion

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

References

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

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

INTRODUCTION

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

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

CHALLENGES TO THE AMENDMENT

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

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

CONCLUSION

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

CITATIONS

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

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

Background

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

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

Need for the 103rd Amendment

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

What were the Amendments and the Additions?

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

The requirement for amending Constitutional clauses

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

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

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

The challenge to the Constitution’s validity

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

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

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

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

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

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

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

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

Critical evaluation

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

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

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

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

Conclusion

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

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Citations

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

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

Introduction

The Constitution of the Republic of India is the largest in the world. It describes India as a Sovereign Socialist Secular Democratic Republic, which has a parliamentary system of governance. The Indian Constitution was adopted on the 26^th Day of November 1949 and was officially enforced from 26^th January 1950. It took 2 years, 11 months, and 18 days for the constituent assembly to write the constitution. The Indian Constitution is a living document and is the supreme source and authority of law in India, but since its creation, the Constitution has been amended multiple times. Beginning with 395 Articles and 8 Schedules, it presently remains stands at 450 Articles and 12 Schedules resulting from 105 amendments. The 1^st Amendment to the Constitution was made in 1951, whereas the most recent, 105^th Amendment, was made in 2021.

Both rigid and flexible, the Indian Constitution is virtually amendable but difficult to change. The Indian Constitution stipulates that the government may amend the constitution as per Article 368. There are two distinct kinds of amending procedures: rigid and flexible. It is highly challenging to modify the Constitution under the rigid system. The U.S., Canadian, and Australian Constitutions are listed under the rigid system, whereas, the flexible approach is how the Constitution can be amended. A provision must be made in any of the houses in accordance with Article 368 of the Indian Constitution, and it must later be approved by a simple majority or a substantial majority. The resolution will be sent to the president seeking approval if a vote passes it.

Three unique amendment techniques, which blend flexibility and rigidity, are included in the Indian Constitution.

• Simple majority approval; is required to amend some sections, which is akin to adopting a regular law. For instance, adding new states, changing the boundaries of states, changing citizenship requirements, etc.
• The special majority’s amendment; According to Article 249, a majority of two-thirds of members is necessary for a vote. A special majority is needed to adopt Rajya Sabha resolutions that are intended to become laws for the State list.
• Special majority and ratification by at least half of the State Legislatures; the articles, such as those governing the election of the President, the subjects included in the Seventh Schedule, the relationship between the Centre and the States, etc., may be amended.

The Supreme Court held in the 1973 case of Kesavanand Bharati v. State of Kerala that the Parliament could not alter essential clauses that make up the fundamental structure of the constitution. Ideologies of the constitution that are necessary for its existence. Free and fair elections, the federal form of the country, judicial oversight, separation of powers, and so on. It indicates that the Constitution’s fundamental legal principles and founding principles serve as its cornerstone.

Important Amendments to the Indian Constitution

1. The First Constitutional (Amendment) Act, 1951 – On June 18, 1951, India’s first constitutional amendment came into effect. All subsequent constitutional amendments followed the model set by this one. The ninth schedule Articles 31A and 31B, and numerous other articles were changed or added because of the first amendment Act. The following Articles were modified by it: 15, 19, 85, 87, 174, 176, 341, 342, 372, and 376. The Acts that make up the ninth schedule are shielded from judicial review. This means that neither the acts nor their legality may be said to violate fundamental rights as the judiciary’s review of parliamentary actions was not effective for the acts as per the ninth schedule, this made it simpler and more straightforward for the government to carry out its objectives through the legislative process of the parliament. They did not need to be concerned about the judiciary disagreeing as a result. Indian people are free to engage in any type of trade or company they choose under Article 19(g). The amendment stated that the nationalization of any trade or enterprise by the state is permitted if it complies with the following requirements and is in the interests of public order, friendly relations with other countries, and state security, the provocation to execute an offence, defamation, and court contempt.
2. The Fourth Constitutional (Amendment) Act, 1955 – The first constitutional amendment and the fourth amendment both address issues concerning property, land acquisition, and zamindari eradication laws. The judiciary fairly maintained the Zamindari abolition legislation and accepted them. Article 31 was amended significantly by the Fourth Amendment, which also added Article 31A. Clause (1) of Article 31A was replaced, and Article 31A (2)(b) was changed to include the terms “raiyats” and “under raiyats” in the group of people whose “rights” in an estate were no longer covered by Articles 14, 19(1)(f), and 31. Additionally, the ninth schedule was changed to include additional performances. Trade and commerce are free according to Article 301. Is a law that establishes a governmental monopoly in breach of Article 301. The Supreme Court’s ruling explains that law empowering state monopoly needs to be proven to be established in the public’s best interests and indicates that it comes under the classification of reasonable restrictions under articles 301 and 304(b), respectively. This was raised in the case of Saghir Ahmed v. the State of U.P., but it was not addressed at the time. However, an amendment to Article 305 clarifies it now.
3. The Seventh Constitutional (Amendment) Act, 1956 – The first schedule, which included the geographical area and boundaries of all the states and union territories, underwent alterations because of the reorganization plan. Articles 258A, 290A, 298, 350A, 350B, 371, 372A, and 378A were included as part of India’s seventh constitutional amendment. Additionally, it changed the constitution’s schedules 1, 2, 4, and 7, as well as Section 8. The fourth schedule, which outlines how members in the Council of States are distributed, has undergone a major revision. This was because the seat counts were based on a 1941 census. The population and demographics of India had undergone a major change, necessitating an alteration in the number of seats for each state. The constitution was amended to add a new Article 258A. In contrast to Article 258(1), which grants state governments the authority to delegate union functions, the Article defined the states’ ability to do so. The distribution of seats among the states and their regions has been altered by amending Article 81. Alterations are made after every census. Additionally, after every census, each state would be divided into territorial constituencies. Based on the 13th edition of V.N. Shukla’s Constitution of India, there was a gap that required the application of Article 258A. This gap was discovered when a state’s implementation of some of its developmental projects ran into a practical problem. The addition of Article 258A filled (fixed) this gap. The seventh amendment made significant modifications to the makeup of legislative bodies and councils. The same calculation as before was to be used, i.e., one seat per million for the initial five million; and one extra seat for every additional two million. As a result, the seat count is updated in accordance with the findings of the most recent census, but the calculation method is unchanged. Due to problems in states with a low population, the strength was increased from one-fourth to one-third. The 1/4th rule was effective for states with high populations, like Uttar Pradesh, but not for those with smaller populations.
4. The Thirty-Eight Constitutional (Amendment) Act, 1975 – According to Article 123, the President may issue ordinances when neither chamber of parliament is in session. However, the President may only do this if he or she is convinced that doing so is absolutely required in the specific situation. As a result, the Constitution has granted the following powers: to the Governor under Article 239B, to the administrator. Articles 123, 213, and 239B have readable language. Since satisfaction is an ambiguous concept, it cannot be quantified. It is inherently arbitrary. According to the amendment, since “satisfaction” is a relative concept, an ordinance should pass if the president is satisfied with it. When the parliament’s two houses are not in session and a crisis arises, an ordinance is passed. There is no time to confer with others or consider the problem in such circumstances. The approval of the president ought to be the sole criterion for action, which must be implemented quickly. After the cases A.K. Roy, etc. vs. Union of India and Anr. and T. Venkata Reddy, etc. vs. State of Andhra Pradesh, the following was decided. The president’s satisfaction is not exempt from judicial review, but it also cannot be dismissed as simply political or cast in doubt just because of a political issue. On the grounds of motivation or lack of application of mind, the ordinance cannot be contested. The authority to enact an ordinance is a legislative authority, not an executive power. If the President’s intentions are being questioned, an ordinance may be called into doubt. When the President acts dishonestly, it may be contested.
5. The One Hundred First Constitutional (Amendment) Act, 2016 –Article 256A, was added to the constitution with the 101st amendment. “(1) Notwithstanding anything stated in articles 246 and 254, Parliament, and according to clause (2), the Legislature of each and every State, having jurisdiction to adopt legislation with regard to goods and services tax levied by the Union or by such State,” the constitution reads. Where the provision of products, services, or both occur during interstate trade or commerce, Parliament alone has the authority to enact laws relating to the goods and services tax. All the states and the center have the same authority to enact laws governing goods and services. Trades conducted within a state are subject to both state and federal regulations. According to Section 269A, “(1) The Government of India shall levy and collect the Goods and Services Tax on goods in the course of inter-State trade or commerce, and such tax shall be appropriated between the Union and the States in the manner might well be produced by Parliament by law on the suggestions of the Goods and Services Tax Council.” The following prerequisites must be met for the provision, regarding the clause, the provision of products or services, or both, for interstate trade or commerce is defined as the importation of such goods or services into India. According to the clause, the sum allotted to a state is not included in the Consolidated Fund of India. If a tax amount is imposed under subsection (1) and collected to satisfy a tax obligation imposed by the state, it will not be included in the Consolidated Fund of India. When a tax is collected that was imposed by a state under Article 246A and utilized to fulfill clause (1), the tax amount collected will not be included in the State’s Consolidated Fund. Through the creation of laws, the Parliament is empowered to determine where interstate commerce in the form of the delivery of commodities, services, or both will occur. The purpose of the 101st Amendment was to create a consistent national tax system. It grants the center and the states simultaneous taxing authority. Added to that are the union territories. With the legislature in session, this authority allows for the passage of laws relating to the tax imposed on goods and services. All domestic deals involving the flow of goods and services would be subject to this goods and services tax.

Scope for Improvement in the Constitution

1. Transparency in Appointment of Judges- Judges in India choose other judges. The remaining judges and HC judges are appointed by the SC collegium, which consists of the Chief Justice and the four senior-most judges. The public is unaware of the reasons why one judge was nominated and another was not since this is done in an opaque manner. To ensure accountability and openness, the Judges should be appointed by a completely independent authority. On this point, the judiciary serves as a check on the legislative and executive branches’ powers, but there is minimal to no control over the judiciary itself.
2. Term Limits on Public Offices- Important constitutional positions including the Prime Minister, President, Chief Minister, Governor, and even Members of Parliament, Legislative Assemblies, all the way down to members of panchayats should have a set number of terms or tenures. No one should be permitted to occupy any elected public office for longer than 3 terms if not 2. Staying for longer durations in a position of power can be misused for personal gains, as we have seen in countries like Russia and China where their head of state misused their powers to remain in power for even longer durations.

References

1. Kesavanand Bharati v. State of Kerala, (1973) 4 SCC 225.
2. Saghir Ahmed v. The State of Uttar Pradesh, 1954 AIR 728.
3. A.K. Roy, etc. v. Union of India, AIR 1982 SC 710.
4. T. Venkata Reddy, etc. v. State of Andhra Pradesh, 1985 AIR 724.

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

Civil Appellate Jurisdiction

Cases Nos. 270 and 271 of 1951

Equivalent citations

1951 AIR 226, 1951 SCR 525.

Petitioner

State of Madras

Respondent

Champakam Dorairajan

Date of Judgment

09/04/1951.

Bench

• DAS, SUDHI RANJAN
• KANIA, HIRALAL J. (CJ)
• FAZAL ALI, SAIYID
• SASTRI, M. PATANJALI
• MAHAJAN, MEHR CHAND
• BOSE, VIVIAN
• MUKHERJEA, B.K.

Subsequent Action(s)

Enactment of the First Amendment to the Constitution of India.

Facts of the Case

In the 1950s, there prevailed a quota/reservation policy for admission to academic institutions in Madras. There were around 4 engineering and medical colleges each that were upheld by the State. In the engineering colleges and medical colleges, which were financed and upheld by the state where the entire number of seats was 330 spots and 395 spots, respectively 17 spots were preoccupied/reserved for those pupils who were from other domains, and 12 spots were secured for voluntary assignment by the State, and the remaining place for 4 groups of communities in the State in which 6 spots were booked for non-Brahmins, 2 spots allotted for backward classes, 2 seats allotted for Brahmins, 2 seats assigned for Harijans, 1 assigned for Anglo-Indians and Indian Christians, 1 allotted for Muslims, and 20% assigned for women. The assignment was designed on different schemes which were based on educational qualifications and marks secured by the applicants who were from specific communities of the state. The quota system was pursued even after the introduction of the Constitution.

Srimathi Champakam Dorairajan, a Brahmin, was not able to acquire admission into the Medical College in spite of her proficient marks because she belongs to a Brahmin. So, she appealed to the Madras High Court under Article 226 referring to the contravention of her fundamental right of not getting into the medical college. And she also claimed a breach of her fundamental rights under Article 15 (1) and Article 29 (2) and asked the court to repeal the Communal Government Order, by a mandamus writ. C. R. Srinivasan also appealed a petition in the Madras High Court which includes her not getting into an Engineering College in spite of her eligibility. She secured 369 marks out of 450 marks. She also alleged for the matter of the Writ of Mandamus to repeal the Communal G.O.

Issue(s) of the Case

1. If the Communal Government Order 1921 provided by the State of Madras Constitutionally licit or not?
2. If the State can create quotas or reservations for seats in the academic institutions hinged on caste or religion?

Arguments raised by Appellant

The appellant focused on the point of the proviso of Article 46 which states that a state has to promote the academic and economic interests of fragile sections, generally the SCs and STs, and secure them from any type of social prejudice. Therefore, Article 46 provides the privilege to the state to sustain the Communal Government Order by reserving a place for various communities that are affiliated to the state. Consequently, the Communal G.O. is legitimate and permissible in law. So, there is no infringement of the Constitution for which the candidates failed to get into the colleges according to their proficiency and their fundamental rights are not infringed at the same time. In this instance, the proviso of Article 46 revokes the provisos of Article 29(2). It was expressed that Article 46 comprised Part IV of the Indian Constitution concerned with the Directive Principles (DPSP) where Article 37 simply speaks that “The provisos carried in Part IV shall not be implemented by any court, but the principles therein placed down are notwithstanding fundamental in the administration of the country and it shall be the obligation of the State to execute these principles in making laws.”

Arguments raised by Respondent

The defendant asserted that the Communal Government Order under the proviso of Article 46 is an understandable infringement of the Fundamental Rights. The respondent also attached that Caste need not be a hindrance for qualifying students to persuade into a college upheld by a state. Reservation according to the Caste-based is an infringement of Article 16(1). It was stated that Article 29 was not objected at admission to academic institutions rooted in religion, caste, or race. Article 15(1) and Article 29(2) got infringed as the state was biased against and contradicted admission into a college on the footing of caste.

Judgment

The High Court of Madras flattened the Communal G.O. since the quota system which is rooted in caste and opposed the Constitution of India. Both the petitions were concerned with Article 226 of the Constitution which is the grounds behind the infringement of the fundamental right to persuade into a college. After that, the state of Madras filed a petition in the Supreme Court against the decision of the Madras High Court’s where the Supreme Court supported that the grading in the Communal G.O. furnished by the Madras government hinged on religion, caste, and race understandable infringement of the Constitution of India and also an infraction of Article 29(2) in Part III of the constitution which secured the fundamental rights to the Indian citizens. The Court deemed that the State cannot acquire a particular place to allow admission to the applicants rooted in their religion, caste, and race which is infringing the proviso of Article 16 (2). Refusing admission on the bases of caste is a violation of Article 15(1). The provisos of Communal G.O. were introduced by the court which was declared invalid under Article 13 of the Constitution. The court gave a decision in support of Champakam Dorairajan. But an issue appeared “Do Fundamental Rights are superseding DPSP?” Therefore, the court held that in this case which is in an essential dispute between Fundamental Rights and DPSPs, “It will always on every occasion the Fundamental Rights that will triumph”.

Analysis

The case not only secured and safeguarded the Fundamental Rights of the Indian citizens but also the Indian Parliament responded to the verdict of the case at the same time with the idea of amending and altering the laws which were imminent in dispute with DPSPs. This case guided the First Amendment to the Constitution of India. The First Constitutional Amendment Act, 1951 was sanctioned to affix Clause 4 to Article 15. Article 15(4) was executed by the constitution. So, to authorize the state to create any specific provisos for the enhancement of backward classes.

Also, under Article 15(4), The Government can allot seats for the candidates of backward classes in government institutions or the institutions which are accruing help from the state. But it doesn’t permit the state the privilege to assign quotas to private institutions. Further, reforms were linked to the freedom of trade and business, the land reform measures, and freedom of speech which were granted by Article 19(1)(g). Article 19(1)(g) is a theme of sensible restrictions that the state may levy in matters of the general public. Thus, it is legitimate in nature. Prior to this case, there was an inherent dispute between Fundamental Rights and DPSPs since there was no transparency as to which would be more prevailing – Fundamental Rights or DPSPs in the instance of a dispute. But after this case, there is an explanation that “Fundamental Rights are prevailing over the DPSPs”.

Conclusion

It was a milestone case in which the Supreme court of India presented a chronicle judgment. It steered to the First
Amendment. This case revealed the eminence of Fundamental Rights and in what manner Fundamental Rights and
DPSPs are covered. If there is any violation in the fundamental right of a person owing to any direction at that time
the specific order will be examined as null and void like the present case where the Communal Government Order which was infringing the Fundamental Rights of Champakam Dorairajan who repudiated admission to an academic institute on basis of reservation was flattened by the court. This case also spotlighted the need for evolving different laws in the constitution which are infringing the Fundamental Rights of the people of India. Fundamental Rights are eternally superior and eminence for the citizens of the country as it grants them basic privileges which aid them to live with peace and freedom.

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

Pro bono is a condensing for the Latin expression free public or, which deciphers as “for a long term benefit.” The expression regularly alludes to proficient administrations that are accommodated free or at a diminished expense. Experts from various disciplines offer free types of assistance to not-for-profit associations. Medical clinics, colleges, public causes, holy places, and establishments are among these associations. It is additionally conceivable to accomplish free work for people who can’t pay. The expression free is fundamentally utilized in the legitimate calling. Free attorneys serve the public interest by offering free legitimate administrations to individuals out of luck. Rather than working for benefit, the professional is accepted to work to assist the bigger great.

Like M.K Gandhi said “there is sufficient asset for everybody’s necessities except not voracity” conversely, these days equity is available to the people who can bear the cost of it not to the people who are out of luck. So fundamentally, Pro bono is the way through which legal counselors, NGOs, and other legitimate foundations like these days’ law schools through their regulation understudies attempt to give a legitimate guide to the oppressed ones at zero-cost so equity ought to arrive at all classes.

PRO BONO IN INDIA

The option to free lawful guidance is revered in Article 39A of the Indian Constitution. Part IV (Directive Principles of State Policy), added by the Constitution (42nd Amendment) Act 1976, states that the State is committed to ensuring that the general set of laws gives equivalent equity to every one of its residents. The state should offer free lawful help to people who can’t get equity because of monetary imperatives.

However, it is unavoidably given under Article 39E for the state to ensure equivalent equity to all still India has been far away from the free exercises taken by many nations like the USA, UK, South Korea, and so on. Aside from the established rules, the government has likewise framed another demonstration that is Legal Service Authority Act 1987. This Act permits the middle and state legislatures to set up free lawful guide authority at the middle, state, and region levels. On account of Hussainara Khatoon v. Home Secretary, State of Bihar the Supreme Court held that the right to an expedient preliminary is a right ensured under Article 21 of the Constitution. Moreover, as per Article 22(1) of the Constitution, the denounced for a situation has the privilege to be addressed by any legitimate professional of his decision.

While pro bono work is energized under the Indian regulation, it is laden with challenges. In any case, India’s developing requirement for business lawyers smothers free area improvement. Besides, India’s colossal variety, its liberal regulations, and law concerning legitimate administrations for the oppressed, its enormous populace living in destitution, its set of experiences and current status as a common, vote based, republic and its new monetary development, as well as the assumptions that development has raised, all consolidate to establish a special and testing climate where the free legitimate administration area is creating. There are a few public grievances about the formal overall set of laws, including debasement, legal productivity, and absence of public confidence in the legal executive, all of which prompt casual clash settlement.

CHANGES IN PRO BONO SERVICE

Free Legal Service program which is ‘Nyaya Bandu’ was sent off by Mr. Ravi Shankar Prasad in April 2017. It expects to arrive at each minimized or penniless one through the method for an application and to bring every one of the individuals from the free support of one spot. To additional improve the assistance of free Department of Justice arrived at 25 HCs mentioning them to set up an incorporated board of free legal counselors. By 31st 2020, 502 promoters have been enlisted as naysay band under 14 HCs.

In the wake of making a few strides, the number of members was not pleasant because of an absence of time with the supporters. So to adapt to this Department of Justice chose to permit regulation understudies to help free promoters. Then in June 2020, a module of Pro Bono Club was planned. The graduate school needs to pass 3 rules to get into it. After which DOJ has rebuilt the PB Club report for the FY 2021-21 after noticing the Coronavirus circumstance to more extensive the idea of PB Club in Pan India plan to admittance to equity named ” Designing Innovative Solutions And Holistic Access to Justice (DISHA).”

Regardless of this, the lawful guide framework in India has shown to be ineffectual. The significant obstruction is the serious deficiency of achieved attorneys who will work under the aegis of the Legal Services Authorities. Now and again, attributable to low compensation, attorneys are uninterested in giving skilled lawful help. In particular, attributable to clients being alluded to the attorneys through the Legal Services Authorities, a trust situated and proficient legal counselor-client relationship rarely fructifies. The legal counselors remain incredibly careful as the clients are seen to be pushed onto them and clients will generally have ridiculous assumptions. The way that the legal advisor is being paid for his administration by the Legal Services Authorities causes a client to feel that the promoter owes more noteworthy openness and higher help quality. The legal counselor doesn’t see the expense to be equivalent to the work done and endeavors made.

Free administrations are liberated from such biases. The legal advisors take up free tasks with the readiness and respectable aim to serve. There is a chance for both the legal advisor and the client to survey their similarity. The client is likewise mindful that the legal counselor is working for nothing and with the well-being of the client as a top priority. This prompts the development of common regard, trust, and a strong working relationship. One more significant element that works to the advantage of the free framework is that both the client and the legal counselor have an option to stop the commitment without any inquiries being posed. In the legitimate guide framework, these issues will generally cause a commotion.

Throughout recent many years, authoritative, institutional, and jurisprudential changes in India have given the preparation to the oppressed to get free lawful administrations. Practically speaking, notwithstanding, a couple of associations productively offer these types of assistance, depending on India’s special PIL process for legitimate help.

Additionally, it is to be noted here that, as of now, unfamiliar qualified lawyers are disallowed from addressing free clients under homegrown Indian regulation. Unfamiliar qualified lawyers can, nonetheless, effectively add to free legitimate administrations by contributing exploration and composing abilities in individual cases, as well as by implication, by joining forces with Indian associations to construct limits. The interest for free legitimate administrations in India extraordinarily dwarfs the stockpile, and in, not set in stone, coordinated endeavors by the lawful experts would go quite far towards guaranteeing a lawful guide to the destitute and admittance to equity to all as specified by the Constitution.

NEED FOR PRO BONO SCHEMES

1. Restricted Participation of Law school: As of now, DOJ’s attention is just on the NLUs and Central Universities and dismisses other Law schools. As practically all NLUs climate is corporate for that reason their understudies get away from themselves to enjoy prosecution exercises.
2. The low soul is shown by promoters in these cases: Numerous free promoters show low interest or say put fewer endeavors into these cases because of the absence of acknowledgment.
3. Free plan neglected to arrive at mass: Indeed, even in the wake of going to lengths still, more individuals have no lawful help.

To advance free legitimate administrations, the Department of Justice has done whatever it takes to make a data set of legal advisors who give and will offer free types of assistance with the goal that such legal counselors can be considered for the arrangement to suitable positions. After the judgment of the Supreme Court in Indira Jaisingh v. Supreme Court of India, free work has become one of the passing boundaries for assignment as a Senior Advocate. Rather than giving an obligatory free administration structure that will in general have its entanglements, there is a rising need to facilitate boost free lawful administrations. This will go far in coordinating the way of life of free work in the lawful local area. A sound mix of lawful guides and free administrations will go far in empowering our country to accomplish the much-blessed objective of admittance to equity.

CONCLUSION

In the wake of assessing the free plan and its need, we finish up by saying that DOJs ought to move their concentration from just NLUs and Central Universities to State Universities where numerous understudies themselves come from such foundations that experienced due to non-accessibility of free administrations. Furthermore, DOJs should perceive crafted by the PB advocates by giving them grants, monetary rewards, and so on and last new advances should be taken to arrive at the grass-root level of the issue of free reach.

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CITATIONS

1. 1979 AIR 1369, 1979 SCR (3) 532.
2. (2017) 9 SCC 766.
3. Pro Bono work: A case for its integration into legal services in India, https://www.scconline.com/blog/post/2018/08/04/pro-bono-work-a-case-for-its-integration-into-legal-services-in-india/ ( Last accessed on 12 July, 2022).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.