Tag: #ConstitutionofIndia

S.no	Contents
1.	FACTS AND PROCEDURAL HISTORY
2.	ISSUES RAISED
3.	LAWS RELATED
4.	ANALYSIS
5.	CONCLUSION

CITATION

1984 AIR 469

DATE

6/02/1984.

FACTS AND PROCEDURAL HISTORY

Background of the case

Laxmi Kant Pandey, an advocate practising in the Supreme Court of India, wrote a letter in the form of a complaint regarding various welfare agencies and social organisations indulging in various malpractices through the adoption of Indian children by foreign parents. It was found out that the letter was based on a detailed investigation report carried out by a reputed foreign magazine called “The Mail.” It was alleged that when foreign parents adopt Indian children, they are prone to long, tedious journeys and are ill-treated by placing them in shelter homes. Moreover, they are prone to be treated as beggars and prostitutes and other sexual harassment and exploitations. This letter came to be recognized as a writ petition on 1st September 1982. A notice was issued by the Supreme Court to the Indian Council of Social Welfare, Indian Council of Child Welfare, and the Government of India to assist the court in answering the writ petition by stating the principles and rules to decide the matter of adoption by foreign parents as well as to lay down the guidelines to ensure the maximum safety and welfare of the child while being adopted to foreign countries by foreign parents.

Written Submissions and Later Developments

On 30th September 1982, the first set of reports and written arguments based on the court’s notice was submitted by the Indian Council of Social Welfare. Various essential suggestions and recommendations were laid down in the report, which the court must take care of while setting out the guidelines and rules for approving the adoption law. Many organizations like Barnes Framfoer Allt Adoption (Swedish organization), S.O.S Children’s villages of India, etc., and social welfare communities voluntarily expressed their desire to submit their reports and arguments to help the court and participate in the court’s hearing. 

The writ petition was further adjourned to 9th November 1982 as the court issued an order allowing these organizations to submit their arguments. As Indian Council for Child Welfare and Indian Council for Social Welfare were already engaged in offering the adoption of Indian children abroad, the Supreme Court directed the Union of India to gather the submissions and required information from every other organization except these two. 

Union of India, Indian Council for Child Welfare, and Indian Council for Social Welfare were also asked to provide the court with the names of foreign agencies that are engaged in aiding foreign parents to find Indian children. 

By 9th November 1982, the Supreme Court recognised eight specified institutions and permitted them to submit of the affidavit before 27th November 1982. The State of West Bengal was asked to submit its affidavit by the Supreme Court before 9th November 1982. Also, a quarterly report regarding the orders made in the last five years in the Guardians and Wards act, 1890, entrusting the custody of Indian children to foreign parents, was asked to be submitted by the court to the Superintendent of Tees Hazari courts. The final hearing of the writ petition was adjourned to 1st December 1982. The first judgment was passed in the year 1984 followed by a supplement judgment dated 27^th September 1985 stating the norms and guidelines for inter-country adoptions.

ISSUES RAISED

1. Whether the Honourable Supreme Court should accept the writ petition or reject it in the name of no substantial law being involved considering the severity of the issue raised.
2. Whether the Honourable Supreme Court should provide more laws for better clarity after affirming the fact that the laws existing with respect to inter-country adoption are not sufficient.

LAWS RELATED

Guardians And Wards Act

Certain rights and duties of the guardian are covered under the Guardians and Wards Act of 1890. 

Section 7 gives the court the authority to issue a guardianship order. According to this clause, the court may appoint guardians for the benefit of minors.  A guardian will be able to look after the minor and their belongings. The court may terminate any guardian. The court can also remove the guardian who is chosen by the court

Section 8 of this act discusses the child’s welfare and states that the child’s welfare should be the primary motive for adoption. The procedures and norms to be followed in the matter of adoption to safeguard the children’s rights were stated in this act.

Section 9 of the Guardians and Guardians Act 1890 gives the court jurisdiction to consider the application. If the application concerns the guardianship of a minor, the court in which the minor’s guardian resides enjoys jurisdiction.

If the application involves the property of a minor, the district court may have jurisdiction either where the minor lives or where the property is located.

Section 11 outlines the application qualification process. This provision states that the court will set a preliminary hearing once it is convinced of the basis for the proceedings. The notification was sent as the C.P.C. (Civil Procedure Code 1908) authorized.

Section 17 lists factors to take into account when choosing a guardian.  The court will decide based on the minor’s interests, development, and overall case conditions. In accordance with section 17 (5) of the statute mentions that the court cannot appoint a guardian contrarily or oppose the minor’s wishes.

Section 26 concerns excluding the minor from its ambit. If the child disappears from or is separated from the possession of guardians whom the court appoints, then the court will issue an order for the return of the ward to the guardians.

Article 14

Article 14 of the Indian constitution discussed equality before the law and equal protection of the law. Clause (3) of Article 15 is an exception and states that special provisions can be made for children and women. Article 15 was brought to light in this case.

Article 24

Article 24 abolishes child labour and states that children under 14 should not be made to work in hazardous industries, mines, or factories. This article discussed the importance of child welfare and safeguarding them from being exploited in this case.

Article 39

Article 39(e) and (f) mention that the state is required to guide its policies towards ensuring that young children are not molested and that they are not coerced into careers that are out of character for the children’s age, ability, and capacity to grow in a positive way out of financial necessity.

CARA- Central Adoption Resource Authority 

It is a legislative body with the authority to oversee and control both domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with the adoption of orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorised by a social organisation or child welfare organisation approved by the nation’s government where the international pair lives. It is a legislative body with the authority to oversee and control domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with adopting orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorized by a social organization or child welfare organization approved by the nation’s government where the international pair lives.

ANALYSIS

The adoption of children is a concept that has existed in Indian culture since time immemorial. The importance placed on having a “firstborn son” in Hinduism resulted in the notion of adopted sons to conduct family rituals and rites. The established prevalence of adoption in India has ensued in drafting laws, such as the Hindu Adoption and Maintenance Act 1956[1], to ensure that the adoption process is overseen by agencies entrusted with regulating it. However, the pre-existing adoption laws failed to foresee inter-country adoption’s emergence.

Inter-country adoption is a way of adoption that developed due to the improved connectivity of countries with the advent of technology and better transportation methods. It allowed foreign parents to adopt underprivileged children from other countries, usually from countries with lower economic statuses, to provide them with a better life and opportunities. The United Nations validated it in the Draft Guidelines of Procedures Concerning Inter-Country Adoption in 1981. It was seen as a method to ensure that the underprivileged children would receive a congenial environment to grow up in, as they would with their biological parents. Though the thought behind the idea was noble, the lack of regulations made it susceptible to human trafficking, wherein the system in place would be misused. Thus, many children who underwent the process of inter-country adoption would end up getting trafficked and subjected to inhumane living conditions, a stark contrast to the life they were promised. 

The case of Laxmi Kant Pandey vs Union of India[2], which shed light on the severe lack of regulations surrounding inter-country adoption and the need for a legal framework to protect the rights of the adopted children, saw the judiciary take part in judicial activism to ensure that the process of inter-country adoption from India would be as shielded from malicious activities as possible. This was done by ensuring that every step of adoption from India would be precise and regulated.

In the judgment for Laxmi Kant Pandey vs Union of India, the Supreme Court laid out guidelines for inter-country adoption. It thus ushered in a new era concerning adoption in India, wherein the government had till then not taken much cognisance of the lack of guidelines regarding inter-country adoption. The judgment, which was delivered by a three-judge bench headed by Justice P.N Bhagwati, recognised the lack of safeguards with respect to inter-country adoption and chose to formulate a detailed set of guidelines to ensure that the adoption of children from India by foreign guardians would only occur under exceptional circumstances, and only if it was deemed that the children were adopted in a hospitable environment, similar to what they would ideally receive from their biological parents.

The bench made one explicitly clear: adopting the child would put the child’s welfare first and foremost. This was in conjunction with the United Nations Declaration of the Rights of the Child[3], where a child’s right to be loved and grow up in an environment where they can receive the affection they deserve was recognised. The judgment stated that the primary focus of the adoption agencies should be to ensure that the child could be reunited with its biological parents, as the care provided by the child’s biological parents would be the ideal environment for the child to grow up in. To ensure this, the adoption agencies should take the necessary steps to track the biological parents and attempt to reunite the child with them. If needed, social service agencies can facilitate these families in reuniting as, in many instances, the children may be given up by their parents due to financial difficulties or mental incapacity to take care of the child. Only if all attempts by the social service agencies fail after 3 months can the adoption agencies move to the next step: aiding the adoption process of the child domestically

The court noted that, as the welfare of the children is what is essential, the next best step other than reuniting the children with their biological parents would be to find adoptive parents for the child in India, as they would thus grow up in the same environment that they are familiar with and would not have to deal with the stress of adapting to a new country’s culture and norms at their tender age. Securing adoptive parents from the native country would be done for two months. At that point, if the child has not been adopted domestically, the adoption agencies will allow applications for inter-country adoption.

As there is no statutory enactment in India providing for the adoption of a child by foreign parents or laying down the procedures to be followed in such cases, the court has instructed that the provisions of the Guardian and Wards Act 1890[4] should be used to facilitate such adoption. This act provides for the appointment of a guardian by a court for the care of a minor or a person of unsound mind.

In the guidelines issued for foreign adoption in the country, the apex court stated that all applications from foreigners seeking to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner resides. It is important to note that social welfare agencies in India working in inter-country adoption or institutions where the juvenile court commits children should not entertain applications directly from foreigners. The bench also emphasised the child’s age’s importance in inter-country adoption cases. The court has stated that a child should be adopted before the age of three in such cases, allowing the child to assimilate more easily into the new environment and culture.

The process for foreign adoption of Indian children involves applying to the court for appointment as guardian, with notice sent to a child welfare agency. The agency must be licensed and maintain a register of children proposed for adoption. The court must be satisfied that the child is legally available for adoption, and the application must be sponsored by a recognised agency in the foreigner’s country of residence. 

The judgment in Laxmi Kant Pandey vs Union of India was instrumental in ensuring that inter-country adoption would not fall victim to malpractices like human trafficking and thus helped secure the rights of adopted children in India. Following the judgment, the Government of India instituted the Central Adoption Resource Agency (CARA). CARA serves as a centralised source of information for monitoring both domestic and international adoptions. 

This judgment also influenced the creation of the Juvenile Justice (Care and Protection) Act 1986, revised in 2000[5]. This new legislation considered the provisions of the United Nations Convention on the Rights of the Child[6] and other pertinent international treaties. The law adopted a child-centric approach, ensuring that children requiring care and protection receive appropriate care, protection, treatment, and rehabilitation.

Though no formal legislation was enacted to solely overlook the process of inter-country adoption in India, the precise nature of this judgment has ensured that the scope for malpractices with the process of inter-country adoption has decreased gradually and has thus made the process more secure and favourable for the adopted children and the foreign guardians. 

CONCLUSION

The case of Laxmi Kant Pandey v. Union of India was and will serve to be the landmark judgement not only for the statutes and amendments that the judgment brought in but also from a petition letter turning into a writ petition. The significance is that the modification of the judgement in 1987 clarified the guidelines. This case also became sensational, starting from one petitioner, i.e. a litigator of S.C., to six petitioners filing six applications. Also, how Indians and other executives came to know about the scam of illegal sale of babies under the cap of Inter-country adoption. This case is considered one of the substantial ones as it not only dealt with exploitation or trafficking that happens in adopting Indian Children by foreigners but also explained how the guidelines and provisions are to be followed. This was due to population restraint and various policies like the one-child policy by developed countries. So this increased the scope for various illegal and non-reputable adopting agencies that sell Indian children for reasonable sums, and the adopted child ended up as a beggar and prostitute. The case will serve and is serving a scrutinised adoption procedure to adopt Indian children, which will create fear in the minds of illegal or profit-making adoptive agencies. 

The case of Laxmi Kant Pandey vs Union of India brought in the most productive and safe guidelines and procedures like the three to five-tier adoptive process. Starting from whether the adoptive parents can care for the child to create a fixed deposit for the adopted child. The court also ensured that the child being adopted would be able to adapt to the surroundings and culture of the adoptive country and the people around. The other significant outcome of the judgment is how the maintenance of registers by the Social Welfare Department of India and the Embassy of the country the child is being adopted to keep an eye on the address and other details of the adopted kid from time to time ensure the safety kid. Then the modified judgment also solved and provided remedies for a quick adoption process yet a safer one as there was a delay in inter-country adoption. The big question is whether the judgment is efficacious on inter-country adoption. This case also served as an inevitable precedent that led to the introduction of the Central Adoption Resource Agency (CARA) and later following a few more judgments leading to the Juvenile Justice (Care and Protection of Children). Also, the statistics show that during the past four years, close to 2,134 Indian children have been adopted by parents from five countries.

This case is an excellent illustration of how procedure development in public interest litigation has eased standing limitations in India, leaving the judicial framework more accessible to disadvantaged members of society. It also serves as an illustration of the Indian Supreme Court’s judicial activism. The Supreme Court did not think twice about setting specific instructions to control adoptions and safeguard kids from prostitution and enslaved labour when faced with a legislative gap on a significant social concern. In totality, talking about inter-country adoption is like a double-edged sword with advantages and disadvantages On the one hand, international adoption may be a lifeline for kids who have been abandoned, orphaned, or abused. It may give kids’ devoted families access to higher education and superior medical care. It can also allow escaping poverty, prejudice, and other harsh conditions.

Conversely, international adoption may be troublesome if not conducted ethically and openly. The global adoption system has seen child trafficking, corruption, and abuse. Additionally, some critics contend that international adoption may contribute to exploiting marginalised people and perpetuating system imbalances.

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Endnotes

1. The Hindu Adoptions And Maintenance Act, 1956, No. 78, Act of Parliament, 1956 (India).
2. Laxmi Kant Pandey v. Union of India, 1987 AIR 232.
3. UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV).
4. The Guardians And Wards Act, 1890, Act No. 8 Of 1890.
5. The Juvenile Justice (Care and Protection of Children) Act, 2000, No. 56, Act of Parliament, 2000 (India).
6. UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
   Series, vol. 1577, p. 3.
7. http://lexpeeps.in/child-abuse-and-the-laws-to-prevent-it/

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

S.no	Contents
1.	Introduction
2.	Constant Turbulence Between Article 13 and Article 368
3.	The Parliament’s Comeback
4.	The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment
5.	The Contextual Constitution
6.	Conclusion

The Preamble, which is incorporated into the basic structure of the Constitution, demonstrates the relevance of Article 368[1] even to the present day. Recent amendments to the Constitution concerning fundamental rights are made by Parliament. The Constitution, including its fundamental rights, was initially drafted in response to the socio-political requirements deemed necessary at the time. These requirements may not be sufficient or appropriate for the rapidly expanding socio-economic, technological, and legal climate of today. As a result, it is always necessary to amend the Constitution. 

For instance, the 86th Amendment to the Constitution in 2002 made the right to education a fundamental right. In a similar vein, Articles 19(f) and 31 of the Constitution were struck down by the 44th Amendment in 1978, rendering the right to property non-essential. The extent of Article 368’s authority to modify fundamental rights has been interpreted by higher  Indian courts. 

In Sajjan Singh v. State of Rajasthan[2], for instance, the dissenting opinion stated that Article  368 did not grant the Parliament absolute powers and could not be used indiscriminately to usurp citizens’ fundamental rights. Even though there is a lot of literature on how to look at  Article 368 from the point of view of changing the basic structure as a whole, very few recent cases have focused on specifically changing fundamental rights from a legal point of view.  Therefore, I as an author want to fill that knowledge gap. 

From Shankari Prasad v. Union of India[3] in the First Constitutional Amendment Act of 1951 to Waman Rao v. Union of India[4], I will aim to trace the path. I will sincerely put efforts into determining the reasoning behind the bench’s various decisions challenging or upholding certain Parliamentary amendments to fundamental rights, as well as include their own opinion on the subject in the analysis section. I will be using doctrinal methods for in-depth research, also I will address the principles of the law and the constitution, as well as provide a sociopolitical context for the decisions made. 

Introduction

The basic structure of the Indian Constitution includes the fundamental or essential elements that run throughout the document or serve as its foundation. It joins significant arrangements of our Constitution, without the ground standards is outlandish. 

Because of its goal of achieving equity, for instance, the 2019 Constitution (One Hundred and  Third Amendment) Act, which makes reservations for economically disadvantaged groups,  has implications for Article 14 of the Constitution, which is the first fundamental right.

Additionally, on February 4, 2022, the Rajya Sabha debated K.J. Alphons, a BJP Kerala MP,’s proposal to amend the Preamble of the Constitution with a private member’s bill. This was gone against by the RJD MP Manoj Jha and MDMK MP Vaiko in December 2021, on the grounds of abusing the standard in the Kesavananda judgment which was that law and order are essential for the fundamental construction of the Indian Constitution. 

As a result, Parliament would be unable to alter any aspect of the Constitution’s fundamental structure. Fundamental rights are included in the Constitution’s fundamental structure in Part III. According to A.V. Dicey, a nation is said to adhere to the rule of law only if it upholds citizens’ liberties. Article 368 of the Constitution both grants and restricts Parliament’s powers to amend specific sections of the Constitution. 

Constant Turbulence Between Article 13 and Article 368

First Constitutional  Amendment According to Article 13 of the Indian Constitution[5], the Parliament cannot enact laws that restrict, infringe, or violate the fundamental rights outlined in Part III. In contrast,  Parliament is empowered to amend specific sections of the Constitution by Article 368. There is still no answer to the question of whether the two articles can coexist harmoniously. 

The fundamental rights, Preamble, basic structure, and other elements necessary to regulate the three organs of governance and the Indian people are all encapsulated in the Constitution,  according to many. The amount of power Parliament has under Article 368 to amend the  Indian Constitution is symbolized by the scissors used to cut or change the cloth into something else. 

The Constitution only contained seven fundamental rights when the 1st Constitutional  Amendment Act of 1951 was enacted, including the right to property under Articles 31A and  31B[6], which was later eliminated by the 44th Constitutional Amendment. 

The introduction of this right at the time of independence was motivated by two reasons: first and foremost, to boost agricultural production; secondly, to provide farmers, cultivators, and the rural population, who were oppressed by the pre-independence zamindari system, with opportunities, land, and job security. 

They used socialist-welfarist methods and set limits on how much land a person could own to prevent too much land and power from being concentrated in a few hands; a term that is comparable to constitutionalism. In addition, the State was permitted to legally seize someone’s property instead of providing compensation for rehabilitation following displacement. 

A revolutionary policy of the Indian National Congress later led to the establishment of such an exploitative structure to close the gap between the widespread inequality in land ownership. Further changes were set up by the ideological group through the Agrarian Changes Council with Administrator J.C. Kumarappa, overcoming the need to keep the right to property as a key right in a free India.

The 9th Schedule and reasonable restrictions stipulated in Article 19(1)(g)[7] were also included in the First Amendment Act, making it possible for the government to completely or partially acquire the person of any individual. Many citizens were dissatisfied with this Act because it reduced the scope of the most important aspect of the Constitution—the fundamental rights— and gave the Centre too much power to interfere with their lives. 

They filed a case against this Amendment Act in the Supreme Court of India because the Parliament did not have the authority to change fundamental rights. This case became known as Shankari Prasad v. Union of India[8], which was a landmark decision. 

The Supreme Court held that Article 368 allowed Parliament to amend any of the fundamental rights through Constitutional Amendments and that the changes made by the first Constitutional Amendment stand. This proportion smothered the fight for control between the lawmaking body and the legal executive since they explained that Article 13  simply applied to common privileges and not Protected Revisions. 

Numerous state governments incorporated their respective Land Reforms Acts into the 9th Schedule of the Constitution as a result of this decision. This had a significant impact because, normally, any law that violates fundamental rights would be invalidated; however,  by including it in the 9th Schedule, the laws would not be invalidated regardless of whether they violate fundamental rights. 

In Sajjan Singh v. State of Rajasthan[9], this provision of the 17th Constitutional Amendment was challenged. With a 3:2 vote, the five-judge bench decided that the 17th Constitutional Amendment Act does not fall under Article 13. Chief Justice P.B. Gajendragadkar looked into the deeper intentions of the people who wrote the Constitution and concluded that they didn’t want to protect fundamental rights completely because they didn’t put in place a clause that said fundamental rights couldn’t be changed. As a result, both Shankari and Sajjan appeared to favour Article 368 over Article 13. 

The disagreeing assessment given by Equity M. Hidayatullah and Equity J. R. Mudholkar set forward the inquiry with regards to whether changing an essential element of the Constitution would be considered as a revision or as a revamping, and thus, whether the ability to roll out this improvement was presented by Article 368. 

This reexamining of the composers’ aim drove the Court to allude the case to a bigger seat,  forming it into the Golaknath v. State of Punjab[10], which tested the Sajjan choice. By the majority’s decision in Sajjan, the 11-judge bench ruled that the parliamentary powers granted by Article 368 were not absolute and that the Parliament cannot curtail fundamental rights because they are included in Part III, giving them a transcendental status outside of the  Parliament’s purview. In addition, it stated that any amendment violating a fundamental right granted by Part III is unconstitutional, restricting the Parliament’s authority and requiring a  judicial review. 

Golaknath, in contrast to Shankari and Sajjan, prioritized Article 13 over Article 368 because the Supreme Court ruled that Parliament can enact a Constitutional Amendment. This decision by a larger bench of the Supreme Court effectively overturned its previous two decisions and sided with those who opposed amending fundamental rights. 

The Parliament’s Comeback

The 24th Constitutional Amendment, which removed the right to property as a fundamental right that had been included in the 1st Constitutional  Amendment, was challenged in the courts shortly after Golaknath by a large number of cases brought by the general public. The Supreme Court had to clarify that Golaknath would apply retroactively to previous amendments to prevent all of this chaos. 

The Golaknath case narrowed the scope of Parliament’s powers, while the first constitutional amendment restricted the scope of fundamental rights. The decision to enact the 24th Constitutional Amendment, which effectively added a fourth sub-clause to both Articles 13 and 368, was made by Parliament to expand its power to amend. 

The 24th Amendment stated in Article 368(4) that if Parliament enacts another Constitutional  Amendment, it will not apply to Article 13, whereas Article 13(4) stated the opposite to reverse the Golaknath decision. As a result, following the passage of the 24th Amendment  Act, the position was that Parliament could alter any section of the Constitution, including fundamental rights. 

Following the 24th amendment, additional constitutional amendments were enacted to repeal previous amendments that restricted citizens’ rights. The 29th Amendment introduced land reforms, while the 25th Amendment restricted property rights. In 1947, the Privy Purse, a  payment made to ruling families to give up their powers and merge their princely states, was made obsolete by the 26th Constitutional Amendment. In Kesavananda Bharati v. State of Kerala[11] and Golaknath’s position as well, the 24th, 25th, 26th, and 29th Constitutional Amendments were challenged. 

The Supreme Court made it clear that Parliament has the full power to change fundamental rights even before the 24th and 26th Amendments to the Constitution. The 24th Constitutional Amendment, which clarified parliamentary powers, was also upheld by the  Court. In this instance, the issue of how much power the Parliament has over the applicability of fundamental rights came up once more. The Court decided to take a balanced approach in support of a harmonious interpretation, which is referred to as the basic structure doctrine. It did not investigate whether Article 13 or Article 368 is more powerful. 

The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment

On the twelfth of June 1975, Allahabad High Court set out a verifiable choice wherein they suppressed the discretionary triumph of Indira Gandhi’s administration, referring to proof of constituent misrepresentation. They also decided that no one in her cabinet could hold an election office position for six years as punishment. 

After that, Indira Gandhi appealed to the Supreme Court. Just one day before the hearing, she enacted the 39th Constitutional Amendment Act and declared a national emergency on the grounds of internal unrest.

The 39th CAA resulted in the addition of Article 329A and the elimination of Article 71. The dispute over the election was still before the Court at this point. According to Article 329A,  an independent body would handle all electoral disputes involving the Speaker of the Lok  Sabha, the Prime Minister (at the time, Indira Gandhi), the President, or the Vice President. 

Because of the death of this CAA, the forthcoming legal dispute against her could as of now not be active. As a result, the 39th CAA’s goal was clear: to allow Indira Gandhi to continue serving as India’s Prime Minister without interference. The constituent outcomes incidentally showed that Janata Dal Party won the political decision overwhelmingly, making Morarji  Desai the new State head. 

As a result, Indira Gandhi was forced to resign from her position reluctantly. The ruling party then decided to remove Article 329A, which was found to be unconstitutional in the case of  Indira Gandhi v. Raj Narain[12], applying the principles of the Kesavananda case, to undo everything the previous government had done wrong, including the 39th CAA and the unsolicited national emergency. Article 71 was likewise brought back, which offered back the powers to attempt constituent questions to the High Court. 

The Contextual Constitution

After the emergency period under Indira Gandhi’s rule in  1975, the 42nd Amendment to the Constitution made a significant number of changes to prevent similar power abuses from occurring again. It underwent two significant modifications: To begin, it added sub-clause 4 to Article 31C, which discusses property rights; Second, it added paragraphs 4 and 5 to Article 368. 

Article 368(4) stated that Parliament can amend, alter, or remove any fundamental rights under Part III and cannot be subjected to judicial review like Article 31C(4). On the other hand, Article 31C(4) stated that any law could be put in Part IV under the Directive Principles of State Policy (DPSP), even if it violates fundamental rights under Part III. This made it immune to even someone challenging it before the courts. 

As a result, Parliament can add or change any provision in Parts III and IV. The Parliament was granted absolute amending powers by Article 368 (5). Since the legal powers were diminished and the decent methodology in Keshavananda, the 42nd Established Alteration was tested in Minerva Mills v. Union of India and Ors[13]. 

Conclusion

The petitioners in Minerva owned the Bombay Minerva Mills company, which the government occupied under the guise of nationalization. In this case, the Supreme Court  ruled that the 42nd Amendment and all of its amendments were unconstitutional because of  the following three fundamental characteristics: 

First, judicial review, in which rights granted by courts of law are regarded as fundamental  features and cannot be suppressed through an amendment by Parliament; 

Second, Parliament’s limited amending power, which means that Parliament cannot use its limited amending power to expand its capabilities; Thirdly, the balance between Parts III and IV must be maintained so that DPSPs and fundamental rights do not conflict.

All the Established Alteration Acts after the Kesavananda essential regulation case were tested in Waman Rao v. Union of India[14], where the most relevant issue that emerged under the watchful eye of the court was regardless of whether these alterations sabotaged the fundamental construction. 

The Court provided an odd solution to this question by stating that the Kesavananda-based basic structure test will be applied in future amendments and laws. As a result, the Court made it clear that any amendment to the Constitution made after April 24, 1973, can be challenged if it does not adhere to the basic structure doctrine. 

As a result, this case reaffirmed the significance of the Kesavananda rule by allowing  Parliament to alter a portion of the fabric—representing the Constitution—but not the entire fabric. Even though Parliament had the power to change any part of the Constitution,  including the Fundamental Rights, this did not mean that the Constitution’s fundamental structure could be changed even by a Constitutional Amendment. This shows how strong the  Constitution still is in the social and political context of today. 

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Endnotes

1. The Indian Constitution, Article 368
2. Sajjan Singh v. State Of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
3. Shankari Prasad v. Union of India, AIR. 1951 SC 458
4. Waman Rao v. Union of India, (1981) 2 SCC 362
5. The Indian Constitution, Article 13
6. The Indian Constitution, Article 31(A) and Article 31(B)
7. The Indian Constitution, Article 19(1)(g)
8. Ibid 3
9. Ibid 2
10. Golak Nath v. State of Punjab, AIR. 1967, SC 1643
11. Kesavanand Bharti v. State of Kerala, AIR. 1973 SC 1461
12. Indira Gandhi v. Raj Narain, AIR 1975 S.C. 2299
13. Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625
14. Ibid 4

This article is written by Shaurya Sharma, a third-year law student from Fairfield Institute of Technology and Management.

S.no	Contents
1.	Facts of the Case
2.	Issues of the case
3.	Rationale
4.	Judgment
5.	Generalis Specialibus Non-Derogant

Year

1958

Case No.

122 of 1958

Equivalent Citation

1959 AIR 396

Date of Judgment

12/12/1958

Court

The Supreme Court of India

Bench

Chief Justice Sudhi Ranjan Das, Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, Justice K. Subbarao, Justice K.N. Wanchoo.

Introduction

Certain privileges are being provided to the parliament collectively as well as individually so that they can effectively discharge their functions without any kind of hesitation. Article 105[1] deals with the power and privileges of the house of parliament whereas Article 194[2] deals with the power and privileges of the house of Legislators. The case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[3] not only deals with the conflict between the legislator and the court but also between the legislator and a citizen. In the Judgment part of this case, it was held by the court of law that the legislative assembly does have the power to regulate the publication of debate and other proceedings. However, this act might curtail an individual’s Fundamental Rights i.e. Right to Freedom of Speech[4], in this case, analysis, we will critically analyze why the court has given such implications and what is the validity of such implications.

Facts of the Case

In the case, the petitioner M.S.M. Sharma was a journalist at the “Searchlight” which was an English Newspaper operated in Patna, Bihar. On May 30, 1957, one of the members of the Bihar Legislative assembly whose name was, Maheshwar Prasad Narayan Sinha delivered a speech in Bihar Legislative Assembly in his speech he made some statements regarding Mahesh Prasad Singh that he was the one who guided the Chief Minister in the selection process of the other ministers and he also cited certain instances of favouritism. Further, it was alleged by Maheshwar Prasad Narayan Sinha in his speech that ministers were not given the proper ministries to which they were entitled and for which the conventional process should have been followed for the appointment. Many other instances regarding corruption were mentioned by him in the speech, he took the example of the District Judge who was only transferred from one place to another but was not discharged as per the advice of the Chief Justice of the High Court, Bihar. Further many other instances were discussed by him which were regarding the corruption and criticism of the prevailing government.

The Speaker of the assembly held that the part of the speech made by Maheshwar Prasad Narayan Sinha was objectional and directed it to be expunged. However, no specific directions were given to the Press, the speaker meant by saying this that the publication of the part of the speech which criticized the government must not be made.
On May 31, 1957, the part of the speech that was expunged by the speaker and was directed by him that publication of these parts must not be done, was published by the newspaper “Searchlight”. On 10th June 1957 Nawal Kishore Sinha, a member of the state legislative assembly questioned the same in the assembly. The matter was soon transferred to the Privilege Committee. After the evaluation of the entire facts for almost after more than a year on 18th August 1958 M.S.M. Sharma was summoned before the Privilege Committee and was asked to reply as to why an action against him must not be taken as he has done the breach of subsisting privileges. Further, the proceeding regarding the breach of privilege was initiated against the editor. M.S.M. Sharma moved to the court under Article 32 of the Indian Constitution for quashing the said proceeding and he raised the question was whether the said privilege under Article 194 was subject to the Fundamental Right under Article 19(1)(a)[5].

Issues of the case

1. Does the legislative assembly have a power under Article 194(3) of the Indian Constitution to prohibit the publication of the statement which is being done publicly in the house?
2. Do the legislative assembly privileges under Article 194 of the Indian Constitution prevail over the Fundamental Rights guaranteed by the Indian Constitution specifically Freedom of Speech and Expression?[6]

Rationale

Arguments from the Petitioner’s side:

• The notice issued by the committee and the proceeding initiated by them violates his fundamental right under Article 19(1)(a) of the Indian Constitution as well as it violates his personal life and liberty assured under Article 21 of the Indian Constitution.
• They further argued that as the petitioner of the newspaper petitioner is entitled to Freedom of the Press.
• The notice which was issued by the privilege committee was invalid as the Chief Minister of Bihar was the chairman of the Privilege Committee.

Arguments from the Respondent’s side:

• The respondent relied on the Article 194 of the Indian Constitution.
• They argued that the state legislative assembly can exercise similar powers, privileges, and immunities as the British House of Commons, where the proceedings of the assembly cannot be published.
• They further argued that the part of the speech which was directed to be expunged cannot be published by anyone under any circumstances as it was expressly prohibited.
• If a such publication is being made which was being prohibited then such publication is a breach of the privileges of the Assembly.

Judgment

The court of law held that in accordance with Article 194(3) of the Indian Constitution, the state legislative assembly of Bihar does have the same immunities, privileges and power as the British House of Commons. It was said that since Bihar legislative assembly did not have passed any law concerning the power, privileges, and immunities of the legislative assembly and hence legislative assembly of Bihar will enjoy similar power privileges, privileges, and immunities as that of the British House of Commons. In the British House of Commons, there is a framed order that no member shall give a copy or publish any kind of stuff that has happened during the preceding of the House i.e. no publication of the statement must be made that has taken place in the House. Therefore while dealing with the issue of publication regarding the proceeding of parliament or the legislative assembly the law and order of the British House of Commons should be taken into the consideration.

The petitioner said that Article 194(3) is curtailing his Fundamental Rights under Article 19(1) (a) the court has interpreted this question of has concluded that the legislative privilege under Article 194(3) does not abridge the Fundamental Rights guaranteed by the Indian Constitution under Article 19(1) (a) and explanation regarding the same was given. The court of law said that in (1) it is being mentioned that “subject to the provisions of the constitution” whereas in clauses (2) to (4) it has not been stated as subject to. Therefore it can be assumed that Constitutional makers did not intend that that clause should be subject to the provisions of the Indian constitution and hence Article 194(3) does not breach the Fundamental Rights which are guaranteed by the Indian Constitution. Further, the court of law stated that if any provision of the Indian Constitution takes away or abridges the Fundamental Right then in that case it is a violation of Article 13 and the provision that violates the Fundamental Right must be void. But, since Article 194(3) is perfectly valid it can be inferred that it does not violate Article 13 of the Indian Constitution.

However in this case the dissenting opinion was given by Justice Subbarao he quotes the case of Gunupati Keshavram Reddy v. Nafisul Hasan[7] and said that Article 194(3) is subjected to Part III i.e. Articles 12 to 35 which deals with Fundamental Rights.

Generalis Specialibus Non-Derogant

The meaning of above stated legal maxim is – where there is a special right, general rights will not be applicable. From the above discussion, we can infer that the Parliamentary Privileges or the State Legislative Privileges are special rights, and in case the Fundamental Rights are the General Rights. In the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[8], this was one of the key areas where consideration could have been taken and to a certain extent, it was taken. Therefore, the general principles or general rules won’t be applicable in cases where there is a special right. The same was with the condition of Article 194(3) these are the special rights that are being given to the parliament for their effective and efficient working so that they can effectively discharge their functions. And the Fundamental Rights given under 19(1) (a) is the general right that is not applicable in the circumstances in which there is a special privileges/rights and the fines example of the situation is the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[9].

In the case of Azad Transport Co. v. State of Bihar it was considered that the VAT is a special provision and rules in CrPC are considered to be general.

Conclusion

From the above discussion and the analysis of facts, issues, and the judgment of the case it can be said that the court in its majority decision tries to establish the harmonious construction between the prevailing Fundamental Rights and the privileges given to the parliament and the state legislature. The significance judgment of this case is of paramount importance as it serves as the judicial precedent after this particular case. After the decision was delivered by the court, the assembly was prorogued several times and the privilege committee was reconstructed which issued a fresh notice of petition in the court of law against M.S.M. Sharma. As a result, M.S.M. Sharma moved to the court seeking to reopen the same issue. The court held that the principle of res judicata is applicable in this particular case and held that the matter is already decided which is binding on the petitioner.

However, one question remained open in this case and that was whether Article 21 is being affected because of the privileges given to the parliament or state legislative. The question regarding the subjection of Article 19(1) (a) was solved by the court of law i.e. Article 19(1) (a) is not subject to the privileges. But the court of law failed in this case to answer the question relating to Article 21, whether it overrides the privileges or not.

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Endnotes

1. INDIA CONST, art. 105
2. INDIA CONST, art. 194
3. Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others, 1959 AIR 396
4. INDIA CONST, art. 19(1)(a)
5. Supra note iv
6. Ibid
7. Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636
8. Supra note iii
9. Ibid

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

Year

1950

Citation

AIR 1950 SC 27

Court

The Supreme Court of India

Bench

Harilal Kania (C.J.), Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjee and Justice Sudhi Rajan Das, Justice Fazal Ali Saiyid.

Introduction

A.K. Gopalan was the political opponent of the government. He filed the writ petition of habeas corpus. Habeas Corpus which means you may have the body is a writ that institutes the court to determine whether a criminal defendant has been lawfully imprisoned or not. A.K. Gopalan filed this writ petition challenging Article 19(1) (d)[1] which is the right to freedom of movement and article 21[2] which states the right to life and personal liberty. He filed this writ petition against the detention in pursuance of an order of detention made under the Prevention Detention Act, of 1950[3].

Prevention Detention Act detains the person without giving any valid reason and detention is being done because that detention is important. He challenged the validity of the order given by the court in pursuance of the Prevention Dentition Act to be “Mala Fide”.

Facts of the case

Since December 1947 A.K. Gopalan was detained several times illegally and even after the order of the court which makes him free he was kept under detention by the government under the Prevention Detention Act, of 1950. So, he filed a writ petition under article 32 for seeking the writ of habeas corpus of The Indian Constitution. He challenged the legality of order by the government as it opposes some of the articles of The Indian Constitution. He further argued that Sections 7, 8, 10, 11, 12, 13, and 14 of the Prevention Detention Act, 1950 violate Articles 13, 19, and 21 of the Indian Constitution. But majorly he asked for this writ on the ground that the Preventive Detention Act[4] curtails his personal liberty under Article 21 of the Indian Constitution. He contended that the law under Article 21 is not just the enacted law but it also includes the Principle of Natural Justice as well as some others laws associated with it that deprives the individual’s personal life and liberty. 

Petitioner contention

M.K. Nambiar appeared as a petitioner’s council. Some of the arguments put forward by the petitioner’s side were –

• The first and foremost argument was about the legality and validity of the provision of the Preventive Detention Act, of 1950 which they believed had violated Articles 13, 19, 21, and 22.
• We have article 19(1) (d) of the Indian Constitution which states the freedom to move freely within the territory of India but in this case, the State Government of Madras restricted this right by the detention of A.K. Gopala even after the decision by the court which made him free.
• The provisions of the Preventive Detention Act, of 1950 were against article 19 and challenged the statute’s failure as the petitioner’s freedom of speech and expression was revoked.
• Article 21 is in the Right to Life and personal liberty but after the prolonged detention, it seems to have no importance of Article 21 for the petitioner.
• The detention order was also arbitrary as it violates article 22. Article 22 deals with protection against arrest and detention in certain cases.
• Section 14 of the Preventive Detention Act, of 1950 violates the fundamental right under article 13 of the Indian Constitution

Respondent’s Contention

Advocate K. Rajah Ajyar (Advocate General of Madras), and M.C. Setalvad (Attorney General of India) appeared as respondent’s council 

• The respondent said that Articles 19 and 21 should not be read together as it depends on the perspective and the nature of the case in which context both the articles should be read together.
• Detention that is being done is not arbitrary, according to Article 22 which states protection against arrest and detention in certain cases.
• The legal procedure that is followed, everything is as per the constitution of India. 
• Detention does not violate any of the rights of the petitioner i.e. of articles 12, 19, 21, and 22.
• The Prevention Detention Act is completely legal and not arbitrary.
• There is no point in filing a writ petition of habeas corpus under article 32 of the Indian Constitution.

Issues raised in the case

• The Prevention Detention Act, of 1950 does violate the prevailing articles 19 and 21.
• Article 19 – Protection of certain rights regarding, speech and expression, assembly, association, residence, and profession. Article 21 – Protection of life and personal liberty is there any kind of relation between these two, and can they be read together? This was one of the major issues as it could turn out to be the deciding factor.
• Due process is a requirement that legal matters are resolved according to the established rules and principles and everyone should be treated fairly. So the issue raised was whether the procedure established by law under Article 21 is the same as that of due process of law.

Judgment

This case is a landmark case in constitutional law and is popularly known as the Prevention Detention case. After extensive discussion and wide research, the bench of judges came to the last point of the case where they were expected to give the judgment on this particular case. The court rejected the argument that Article 19 and Article 21 of the Indian Constitution are being violated because of the Prevention Detention Act, of 1950. The next particular topic on the discussion was being done was that whether the Prevention Detention Act, 1950 is ultra-vires or not, however in this particular question section 14 of the act was declared as the ultra-vires as it violates the rights guaranteed by Article 22(5) of the Indian Constitution. The court also said that being ultra-vires of section 14 of the act does not affect the validity of the whole act. The next question was whether article 19 and article 21 should be read together and if there is any kind of relationship between both articles. The court rejected this argument and said that both article is distinct and must not be read together.

The judgment of this case was given by the 6 judge’s constitutional bench in a ratio of 5:1. The decision of Justice Fazal Ali was opposite to the decision given by the other judges and his decision can be regarded as the dissenting opinion. The court said that personal liberty only means the freedom of the physical body and nothing beyond that. In the nutshell, we can say that the Supreme Court rejected the petition filed by A.K. Gopalan and said that the Prevention Detention Act, 1950 does not violate article 19(1) (d) and article 21 of the Indian Constitution.

• Dissenting opinion by Justice Fazal Ali

In this case, the dissenting opinion was given by Justice Fazal Ali; he observed that preventive detention violates the Fundamental Rights guaranteed by the constitution. According to him, the Constitution recognized that personal liberty and preventive detention are arbitrary and could be misused by the government to suppress political dissent. He further argued that personal liberty was a fundamental right and could only be curtailed in accordance with the law and that the Preventive Detention Act, of 1950, did not satisfy this requirement.

In his dissenting opinion, Justice Fazal Ali noted that the right to personal liberty is one of the essential parts of the freedom and dignity of the individual, and it is necessary to protect this right from arbitrary interference by the state. He said preventive detention violates this right hence it is unconstitutional.

Therefore, in the case of A.K. Gopalan vs. The State of Madras, Justice Fazal Ali highlights a commitment to a person’s rights and restricting the power of the state to interfere with personal liberty.

• Protection of Personal Liberty

The Article 21 of our Indian constitution reads “No person shall be deprived of his personal liberty except according to the procedure established by law”[5]. The word “person” that is being used in this article signifies that this Article is applicable to the citizen as well as non-citizens as everyone is entitled to personal liberty. The Article further states that this liberty cannot be taken away unless there is a procedure established by law has been followed. Concerning the fact regarding personal liberty the difference between “Due process of law” which means the process must be fair and reasonable and “procedure established by law” which means the procedure should take place in a way that the parliament has signified, was taken into consideration. However, in the judgment of this case the meaning of Article 21 was taken in a narrow sense i.e. in this case the meaning of personal liberty was taken as personal liberty is just protection of body parts and the state cannot harm the individual’s body part. Also, it was held that there is no link between Articles 14, 19, and Article 21.

After 30 years in the case of Maneka Gandhi v. Union of India[6], personal liberty was interpreted in a different sense i.e. in a wider sense. The court took the wider view of Article 21. It was held that there is a connection between Articles 19 and 21. It was also held that there is no difference between personal liberty and liberty. In personal liberty, every other liberty has been included. Therefore the concept of personal liberty was taken into consideration in a different sense before and after the case of A.K Gopalan v. State of Madras[7] thereby leading to the rejuvenation of a new concept of personal liberty in the case of Maneka Gandhi v. Union of India[8].

• Co-relation of Article 14, 19, and Article 21 before and after the case

Articles 14, 19, and Article 21 are the basic and vital Articles of the constitution, and the connection between both them is to be taken into consideration for the better interpretation of these Articles. Article 14, 19, and Article 21 are connected with each other as there forms the bedrock of the Fundamental Right guaranteed to every citizen of India. Before the case of A.K Gopalan (1950), these articles used to be taken into consideration as a separate and distinct identity. Article 14 ensures equality before the law and equal protection of the law. Article 19 guarantees six freedom to the citizens of India these freedoms are – Freedom of speech and expression, Freedom to assemble peacefully, Freedom to form associations and unions, Freedom to move freely throughout the territory of India, Freedom to reside and settle in any part of the country and the last is the freedom to practice any profession, occupation, trade or business. Article 21 guarantees the right to life and personal liberty to every citizen.

In the case of A.K Gopalan, the Supreme Court of India held that the right to personal liberty under Article 21 is limited to procedural aspects. This means the government can deprive an individual of their personal liberty as long as the procedure for doing so was legal. This decision in the case of A.K Gopalan was criticized by many as an individual could be detained infinitely without facing any trial until the procedure allows doing that.

However, in the subsequent cases, the Supreme Court expanded the scope of Article 21 to include substantive rights as well such as a free trial, the right to privacy, and the right to education, etc. under this Article. This inculcation of substantive rights in the purview of this Article 21 gives the interconnection of Articles 14, 19, and Article 21.

Conclusion

In the case of A.K. Gopalan vs. The State of Madras, the court restricted the meaning of Article 19 and Article 21 of the Indian Constitution. However, after several years in the case of Maneka Gandhi vs. Union of India, the court overruled this judgment and said that the opinion of Justice Fazal Ali was correct. The court further said that the scope of Article 21 and Article 19 has a wider view. From the above analysis of the case, we can conclude to the fact that the Right to life and personal liberty is not only recognized under the Indian Constitution but also intentionally recognized on the basis of the principles of natural justice. The case of A.K Gopalan is one of the most important cases of Independent India as in this case the question pertaining to Article 21 was raised for the first time after the Independence of India. However, the court took Article 21 in a narrow sense and makes it in accordance with the procedure established by the law. Almost after 30 years this decision was overruled and lastly, Article 21 was taken into a broader sense. Lastly, the court widen the view of Article 21 and said that the procedure established by the law must be just, fair, and reasonable. Therefore, from the above discussion, we can say that the case of A.K. Gopalan vs. The State of Madras (1950), was a landmark case in the Indian Constitution.

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Endnotes

1. INDIA CONST. art. 19(1) (d)
2. INDIA CONST. art. 21
3. Prevention Detention Act, 1950, Act No. 4 of 1950
4. Ibid
5. INDIA CONST. art. 21
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. A.K Gopalan v. State of Madras, AIR 1950 SC 27
8. Supra note vii

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

S.no	Contents
1.	Abstract
2.	Introduction
3.	Constitutional Theory in Different Countries
4.	Constitutional Theory in the Indian Context
5.	Background of Formation of the Constitution
6.	Salient features of the Indian constitution
7.	Conclusion

Abstract

This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the world’s strongest constitutions, particularly the Indian and US constitutions.

Introduction

Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices.
Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law:

1. The first aspect which is more of a formal theory covers
   • The overall structure of the government
   • Relations amongst branches of government
   • Relations between various levels of government
2. The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.

A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution.

Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy.

Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a state’s rulers cannot cross such as fundamental rights.

The constitutional theory differs from one country’s constitution to another’s.

Constitutional Theory in Different Countries

CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review.

Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country.

This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all.

When carrying out judicial review a court may ensure that the principle of ‘Beyond the Powers’ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation.

The great influence of judicial review in constitutional theory was established in Marbury v. Maddison^[1]. Broad concepts explained by the Constitutional Theory:

1. It seeks to understand the relationship between
   • Branches of government
   • Individual rights and state power
   • Federal government and state
2. It seeks to understand how the constitution’s meaning shifts with
   • changes in cultural norms
   • changes in Political structure

Some of the US’s constitutional theorists are:

• Bruce Ackerman
• Jack Balkin
• Ronaldo Dworkin
• Robert Post
• Class Sunstein

GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century.
Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance.

Constitutional Theory in the Indian Context

The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religions in contemporary India.

Background of Formation of the Constitution

The Constitution of India was framed by the Constituent Assembly, elected by members of the various Provincial Assemblies. Dr B. R. Ambedkar was the chairman of the drafting committee formed by the Assembly. Our Indian Constitution was finally adopted by the Constituent Assembly on 26 November 1949 and became effective on 26 January 1950. At the time of adoption, the Indian Constitution consisted of 395 articles in 22 parts and 8 schedules. Later, additional parts and articles have been included in the Constitution through various amendments. Presently, there are 25 parts, 448 articles and 12 schedules in our Constitution.

The first ever report prepared, also called the Nehru Report was formed in 1928 when the All Parties Meet convened a committee in Lucknow.

The Indian Constitution is drawn from a large number of sources, depending on India’s needs and conditions. It draws inspiration from the already proposed constitutional theories in other parts of the world.

The constitution declares India to be a Sovereign, Secular, Socialist, Democratic, and Republic and assures to all its citizens Justice, Liberty, Fraternity, and Equality as prescribed in the Preamble of the Constitution.

The Indian constitution prescribes the functioning of each organ and even the biggest to the smallest unit of administration in India. The three pillars of the Indian legal–political system are the Legislative, Executive, and Judiciary. Constitutions are broadly classified by political scientists as being unitary or federal. In a unitary constitution, the powers of the government are centralized in one government which is the central government, the provinces are subordinate to the centre. However, on the other hand, in the case of a federal constitution, there exists a division of powers between the Federal and State governments. Indian constitution is however termed as a mix combo of both types of constitution i.e., a Quasi Federal constitution. Dr BR Ambedkar termed the Indian constitution as a
predominantly federal constitution with a slight mix of unitary features.

Salient features of the Indian constitution

1. Lengthiest Constitution
   The constitution of India is a written constitution that happens to be the lengthiest written constitution in the world. It is an extensive, elaborate, and detailed document.
   
2. Drawn from Various Sources
   It has taken the majority of its provisions from the constitution of several other countries as well as from the Government of India act, of 1935. Ex: structural part from GOI, 1935, independence of the judiciary from USA, Fundamental Rights from USA, etc.
   
3. The Preamble of the Constitution
   The Preamble includes the objectives, ideals, and basic principles of the Constitution. The Preamble is the nature of the Indian state and its purpose is committed to safeguarding the people. The Preamble of the Indian constitution also called a short introduction to the constitution sets out the main objectives which the legislation is intended to achieve. It is often termed as expressing the phrase “what we thought or dreamt for India for so long”.
   
   In the Re Berubari case^[2], the Supreme court held that the Preamble to the constitution is a key to opening the mind of the makers and shows the basic objective for which they made the different provisions in the constitution. However, at the same time, it doesn’t mean that it can override the express provisions of the constitution.
   
   In Kesavananda Bharati v State of Kerala^[3], the Supreme Court held that Preamble is a part of the constitution. Sikri, CJ had observed, “It seems to me that the Preamble of our Indian Constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”
   
4. Fundamental Rights and Duties
   The Constitution of India allows and ensures Fundamental Rights to its citizens.
   
5. Directive Principles of State Policy
   A unique part of the Constitution is that it consists of a chapter in the Directive Principles of State Policy.
   
6. Federal Structure of Government
   The Indian Constitution has conceived a federal structure for India in view of the geographical vastness and the diversity of regions, languages, castes, religions, etc.
   
7. Concept of Single Citizenship
   The concept of single citizenship has been envisaged in the constitution of India where all citizens enjoy common uniform citizenship.
   
8. Integrated Judiciary
   The Constitution specifies a single integrated judicial system for the Union and the states.
   
9. Basic Structure Doctrine
   The basic structure doctrine was firmly established by the Kesavananda Bharti v. State of Kerala^[3] which means that the basic structure of the constitution cannot be either changed or destroyed through amendments made by the Indian Parliament. It is probably one of the most important, landmark cases post-independence. While deciding on the issue, it was contended that in case unfitted powers were vested in the hands of the parliament, it would lead to misuse of power by the government as per their own whims and fancies. In short, this limitless power can erode the fundamental governing, and guiding principles of the constitution.
   
   It was held in the case of Indira Gandhi v. Raj Narayan^[4] and in the case of Minerva Mills v. Union of India^[5] that the where comes the question that whether a particular feature of the constitution is to be covered under the basic feature or not, is upon the discretion of the relevant court, before which the case has been brought up to.
   
10. Judicial Review
    It was held in the case of State of Madras v. V.G. Row^[6], Chief Justice Patanjali held that judicial review is an important component closely attached to the legislature.
    
11. Living Document
    Last but not the least, In the case of Nagaraj v Union of India^[7] it was held that the Constitution of India is a living document which is a set of leg rules for the present society but at the same time it envisages principles for the futuristic society keeping in mind the adaptation it shall have to take during times of various crisis of human affairs.

Conclusion

There are many interpretations and analyses of constitutional theory. It differs from country to country, organization to organization as the purpose of a constitution, a legal document that serves society also varies accordingly. The Indian constitution, the world‘s lengthiest and most complex constitution is a great blend of features adopted from the constitutions of countries from all across the globe. India, which adopted the path of democracy much later than other western countries, took inspiration from all these borrowed features to create a constitution which can meet the demands of the heavily diverse India. Some of the most salient features of the Indian constitution which make it stand apart from the other constitutions include being the lengthiest constitution, the preamble or the unique short brief to the constitution, and the concept of basic structure doctrine which has been laid down and upheld in several landmark cases. The Indian constitution most importantly is neither too rigid nor too flexible, it allows amendments to the existing structure through specified procedures, to cope up with the changes of time and society, hence making the Indian constitution a living document. Despite, all flaws pointed out by the critics, the Indian constitution has stood all tests of time and won in all aspects of the Indian Democracy.

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Citations:

1. Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
2. Re: The Berubari Union, AIR 1960 SC 845
3. Kesavnanda Bharati v State of Kerala, AIR 1973 SC 1461
4. Mineva Mills v. Union of India, AIR 1980 SC 1789
5. State of Madras v. V.G. Row, 1952 SCR: AIR 1952 SC 196
6. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212

References:

1. Constitution of India, V.N Shukla
2. WILLIAM & MARY BILL OF RIGHTS JOURNAL: constitutional theory in a nutshell by THOMAS E. BAKER
3. What is a constitutional theory? – DAVID A. STRAUSS; CALIFORNIA LAW REVIEW (VOL. 97:581)
4. http://lexpeeps.in/indian-federalism-issues-and-challenges-2/
5. http://lexpeeps.in/interrelationship-between-fundamental-rights-and-duties/

This article is written by Jasmine Sethi, a 1^st-year law student at Dr B.R. Ambedkar National Law University

CITATION

(2017) 9 SCC 1

INTRODUCTION

The case of Shayara Bano vs Union of India refers to a landmark judgment by the Supreme Court of India in 2017 that upheld the constitutional validity of the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who challenged the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process.

FACTS

Shayara Bano vs Union of India is a landmark case that challenged the practice of Triple Talaq or instant divorce among Muslims in India. The case was filed by Shayara Bano, a Muslim woman from Uttarakhand, who had been married to Rizwan Ahmed for 15 years and had two children. In October 2015, her husband divorced her by sending a letter with the word “Talaq” written thrice. Shayara Bano was devastated by the sudden and arbitrary divorce and decided to challenge the practice of Triple Talaq in court.

Shayara Bano’s petition challenged the legality of Triple Talaq, Nikah Halala, and polygamy, which are practices prevalent among the Muslim community in India. Triple Talaq is a practice that allows Muslim men to divorce their wives by saying “Talaq” three times in one go, without giving any reasons or going through the legal process. Nikah Halala is a practice where a divorced woman has to marry another man, consummate the marriage, and then get divorced again before remarrying her former husband. Polygamy is a practice where Muslim men are allowed to have multiple wives. Shayara Bano argued that these practices violated her fundamental rights as a woman and went against the principles of gender justice and equality enshrined in the Indian Constitution. She contended that the practices were arbitrary, and discriminatory, and left Muslim women vulnerable to abuse and injustice. She also argued that the practices were not essential to the practice of Islam and should be declared unconstitutional.

PROCEDURAL HISTORY

The case of Shayara Bano vs Union of India was filed in the Supreme Court of India on February 2016. Shayara Bano, the petitioner, challenged the constitutionality of the practice of Triple Talaq, which allows Muslim men to divorce their wives by saying the word “Talaq” three times in one go.

The case was assigned to a five-judge bench of the Supreme Court, which held several rounds of hearings and considered arguments from both sides. The bench was headed by Chief Justice J.S. Khehar and included Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, and Abdul Nazeer. The first hearing in the case was held on May 11, 2017, and the court directed the Union of India to file its response to the petition. The All India Muslim Personal Law Board (AIMPLB) was also allowed to intervene in the case and present its arguments.

The Union of India, represented by the Attorney General, took a neutral stand on the issue and argued that it was up to the Supreme Court to decide whether Triple Talaq was constitutional or not. The AIMPLB, on the other hand, supported the practice of Triple Talaq and argued that it was a matter of personal law and should be left to the community to decide.

The court held several rounds of hearings over the next few months and heard arguments from both sides. The bench also received submissions from several other Muslim women who had been victims of Triple Talaq and other similar practices.

Finally, on August 22, 2017, the Supreme Court delivered its judgment on the case.

JUDGEMENT AND ANALYSIS

This case is a landmark judgment that has inspired many women to make bold movements and is famously known as the judgment that changed India. This landmark case is also known for its unique diversity in the religion of the judges as it was headed by a Sikh Judge followed by judges from other religions namely, Christianity, Islam, Parsi, and a Hindu judge. In this case, Shayara Bano along with 4 other Muslim women was subjected to talaq e biddat also known as instant triple talaq. They demanded that talaq e biddat should be declared unconstitutional because they believed that it violated their fundamental rights. Hence the five-bench constitution bench mentioned before they were formed. It is also quite ironic that there was no women judge on the bench given the fact that the case dealt with gender justice. The verdict of this case was quite unexpected as the Supreme Court neither constitutionally banned nor legally, instead, they set aside the Muslim Personal law related to triple talaq. 2 out of the 5 judges namely CJI Khehar and Justice Nazeer said this law cannot be banned and the other 2 judges namely justice R.F.Nariman and Justice U.U.Lalit declared it unconstitutional. It was read perhaps for the first time that a Muslim Personal Law is also a fundamental right as the law comes under the religion of Islam and people have the right to practice any religion as a fundamental right. Thus, they said the law must not be banned.

On the other hand, the other two judges declared that the act was arbitrary, that is without any application of logic and also violating the fundamental rights of the women, the law is unconstitutional. They read that the Muslim personal is a pre-constitutional law that is not arbitrary and thus is to be banned. The last judge, Justice Kurian Joseph said that triple talaq is unislamic. He went on to justify his statement by stating that for talaq to occur, there are two prerequisites for the same. Justice Kurian Joseph said that for talaq to be valid, there must be reconciliation and arbitration and that in the form of triple talaq, there is no scope for either as it is irrevocable. Reconciliation and arbitration are two essentials of Islam divorce law where both parties may plan to reunite after marriage. Even though the judges did not declare it unconstitutional, it was sent forth to the parliament for implementation. Eventually, on 28 December 2017, the Lok Sabha passed the bill with a majority. 

The question here is whether the passing of the bill is a violation of the Islamic principle or a stepping stone toward women’s empowerment. 

We can see how patriarchal the laws are as the only way in which Muslim women can get separated from their Muslim husbands is by Talaq-e-Tafweez. The wife can approach the court for the dissolution of the marriage under the Muslim Marriage Act, of 1939 if any of the said conditions are practised by the husband. Moreover, it is like an agreement, they don’t have the option to pronounce talaq in different ways as Muslim men do. When talaq-e-biddat was banned in Shayara Bano v. Union of India., some sort of legal protection was awarded to the Muslim women and this landmark judgment was a ray of hope for them. 

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim women at the time of divorce can ask their husbands for maintenance only until the Iddat period. If the woman is not in a position to maintain herself and she has not married again, she is not entitled to ask her former husband for maintenance. Its constitutional validity was challenged in the landmark case of Daniel Latifi & Anr., v. Union of India.^[1], where it was argued that the rights of Muslim women are violated under articles 14, 15, and 21 of the constitution. Therefore, it was held that women are to be awarded maintenance under section 125 of CrPC. This section ensured that women in general is protected from destitution and vagrancy and were secular in nature.

These two landmark cases ensured the protection of the rights of women and a better position in society along with giving a wide interpretation of article 44 and the Uniform Civil Code. 

CONCLUSION

Men under Muslim law have the right to marry 4 women at a time whereas women can contractually enter only a single marriage. This clearly shows the patriarchy that women face and their plight when compared to men. In the present world of advanced science, technology, and advanced thinking, where there are different methods that have been developed for the rescue of people like adoption, IVF, etc. the procreation capacity of women cannot be considered a justification for polygamy. In such a scenario, UCC needs a safe and secure future for women in society. This is an important issue in the current scenario because, in many of Islam-practicing countries like Iran, Tunisia, Pakistan, etc. polygamy has already been abolished. It is high time for a country like India which give immense importance to human rights and equality to consider the same.

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ENDNOTES:

1. Daniel Latifi & Anr., v. Union of India., (2001) 7 SCC 740

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

Case No.

Appeal (crl.) 1207 of 1997

Equivalent Citation

AIR 1998 SC 2120

Date of Judgment

17/04/1998

Court

The Supreme Court of India

Bench

S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha, S. Rajendra Babu

Facts of the Case 

During the 10th Lok Sabha election which was held in the year 1991, the congress party was the leading party and subsequently, it formed the government with P.V. Narasimha Rao as a Prime Minister. However, everything was going well in the party unless during the monsoon session of Lok Sabha in July 1993 a ‘No Confidence Motion’ was moved against the existing government of P.V. Narasimha Rao. Now, the party was in minority so they gave bribes to a few members of JMM (Jharkhand Mukti Morcha) and urge them to vote against the motion. The party somehow managed to defeat the motion with 251 members voting in the favor of the motion and 265 voting against the motion. 

After the motion got defeated the party once again came into power. But on February 28, 1996, a person named Shri Ravindra Kumar of Rashtriya Mukti Morcha filed a complaint with the CBI wherein it was alleged that some members of parliament were bribed during the no-confidence motion in Lok Sabha in July 1993. The CBI based on information received registered a complaint under Section 13(2)^[1], Section 13(1) (d) (iii) of the Prevention of Corruption Act^[2] against the Suraj Mandal, Shibu Soren, Simon Marandi, and Shallendra Mahto, members of JMM. In short, a criminal prosecution was launched against the bribe-taking and bribes giving members of the Parliament under the Prevention of Corruption Act, 1988^[3] and Section 120-B of the Indian Penal Code^[4]. The cognizance was taken by the special Jude Delhi, the person who sought to be charged as aforesaid, filed a petition in Delhi High Court seeking to quash the charge the High court dismissed the petition. Therefore an appeal was filed in the Supreme Court of India and then referred to the constitutional bench. 

Issues of the case 

1. Whether under Articles 105(1) and 105(2), a member of parliament can claim immunity from prosecution before a criminal court on a charge of bribery concerning the proceeding of the parliament.
2. Is a member of parliament a public servant under the Prevention of Corruption Act, of 1988?

Rationale 

Arguments from the Appellant’s side:

• The counsel from the appellant’s side argued that the immunity under Article 105(2)^[5] must be taken into wide sense so that the members of the parliament can exercise their right to vote without any kind of fear.
• It was further contended by the appellant’s side that offers and acceptance of a bribe do not amount to a criminal offense either under the Indian Penal Code^[6] or under the Prevention of Corruption Act^[7].
• Also, neither charge of conspiracy under section 120-B of IPC^[8] nor any offense mentioned under the Prevention of Corruption Act, 1988 evokes against them. 

Arguments from the State headed by the Attorney General:

• The attorney general argued that there are no sets of rules or laws that say whether these particular things fall under the purview of Parliamentary Privileges or not which are being enjoyed by the members of the parliament. This argument relied on the judgment of the U.S. Supreme Court in Brewster^[9]. The acceptance of bribes by the members is a breach of the privileges.
• Along with this many contentions were put forward from both sides which form the basis of the case.

Judgment 

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

P.V. Narasimha Rao was acquitted of all charges in the JMM bribery case. The judgment was delivered by a special court in Delhi, India, which found that there was insufficient evidence to support the charges against Rao and others. The judgment was a significant one, as it marked the first time that a former Prime Minister of India was acquitted in a corruption case. The case was widely watched and had a major impact on Indian politics, with many people viewing it as a test of the Indian judiciary’s independence and its ability to deal with high-profile corruption cases. The verdict in the JMM bribery case was seen as a victory for P.V. Narasimha Rao and his supporters, who had argued that the charges against him were politically motivated and aimed at tarnishing his legacy as one of India’s most transformative Prime Ministers. Despite his acquittal, the case remains a matter of public record and continues to be discussed and debated in the Indian media and political circles.

Implications for parliamentary privileges in India regarding this case

The JMM bribery case had important implications for parliamentary privileges in India. Parliamentary privileges are certain rights and immunities that are granted to members of Parliament to enable them to carry out their duties effectively. One of the key privileges is immunity from criminal prosecution for words spoken or acts done in the course of parliamentary proceedings. In the JMM bribery case, some of the accused, who were members of Parliament at the time, claimed that the charges against them were covered by parliamentary privilege and that they could not be prosecuted for bribery and corruption. This argument was rejected by the court, which held that the charges against the accused related to acts that were not covered by parliamentary privilege.

The JMM bribery case, therefore, clarified the scope of parliamentary privilege in India and established that members of Parliament are not immune from prosecution for criminal offenses, including bribery and corruption that are committed outside of parliamentary proceedings. The case was seen as a positive development for accountability and transparency in Indian politics, as it demonstrated that public officials, including members of Parliament, can be held accountable for their actions. The verdict in the JMM bribery case reinforced the principle that no one is above the law and that all citizens, regardless of their status or position, must be subject to the same legal standards and procedures.

Conclusion 

The conclusion of the case marked the end of a long and contentious legal battle that had far-reaching consequences for Indian politics. The case was widely watched and was seen as a test of the independence of the Indian judiciary and its ability to deal with high-profile corruption cases. While the verdict was seen as a victory for P.V. Narasimha Rao and his supporters, the case continues to be a matter of public record and remains a source of discussion and debate in India. The JMM bribery case serves as a reminder of the importance of ensuring the transparency and accountability of public officials, and the role that the judiciary can play in upholding the rule of law and protecting the rights of citizens.

---

References:

1. Prevention of Corruption Act, 1988, Section 13(2), Act No. 49 of 1988
2. Prevention of Corruption Act, 1988, Act No. 49 of 1988
3. Ibid
4. Indian Penal Code, 1860, Act No. 45 of 1860
5. INDIA CONST, art. 105(2)
6. Supra note iv
7. Supra note ii
8. Indian Penal Code, 1860, section 120-B, Act No. 45 of 1860
9. United State v. Brewster, 33 L Ed 507

The Indra Sawhney vs Union of India case, also known as the Mandal Commission case, was a landmark case in the history of the Indian judiciary. The case, heard by a nine-judge bench of the Supreme Court, dealt with the issue of reservation in government jobs and education for the socially and economically backward classes of Indian society, also known as Other Backward Classes (OBCs). The judgment, in this case, has had far-reaching implications for Indian society and polity.

Background and facts

The Mandal Commission, formally known as the Socially and Educationally Backward Classes Commission, was set up by the Indian government in 1979 to identify socially and educationally backward classes (SEBCs) in India and make recommendations for their advancement. In 1980, the Commission submitted its report to the government, recommending that 27% of all government jobs and seats in educational institutions be reserved for SEBCs. This recommendation was implemented in 1990 by then Prime Minister V.P. Singh, leading to protests and agitation across the country.

The implementation of the Mandal Commission recommendations in 1990 was met with widespread protests and opposition, particularly from upper-caste communities, who argued that it violated the principle of meritocracy and was unconstitutional. The government defended the policy, arguing that it was necessary to provide opportunities to historically marginalized communities and to address the historical injustices of caste discrimination. Several petitions were filed in various high courts challenging the implementation of the reservation policy for OBCs, and eventually, the matter reached the Supreme Court. The apex court, in its judgment in the Indra Sawhney vs Union of India case, addressed several issues related to reservation and its implementation.

The case was first heard by a nine-judge bench of the Supreme Court in 1992, which delivered a split verdict.

Procedural History

The procedural history of the case can be divided into the following stages:

The Mandal Commission Report: In 1979, the Mandal Commission was constituted by the Government of India to identify the socially and educationally backward classes (SEBCs) in the country and recommend measures for their upliftment. In 1980, the Commission submitted its report, which recommended that 27% of government jobs and seats in educational institutions be reserved for SEBCs.

Implementation of the Mandal Commission Report: The implementation of the Mandal Commission Report was challenged in various courts across the country. In 1990, the government issued an office memorandum implementing the recommendations of the Commission. This led to widespread protests and agitation by various groups, including students and job seekers.

The Indra Sawhney Case: In 1992, a group of petitioners led by Indra Sawhney, a former civil servant, filed a writ petition in the Supreme Court challenging the implementation of the Mandal Commission Report. The petitioners contended that the reservation policy violated the fundamental right to equality enshrined in the Indian Constitution.

Constitution Bench: The case was heard by a Constitution Bench of the Supreme Court comprising nine judges. The hearings began in 1992 and continued for almost five years. The bench heard arguments from both sides and also received inputs from various experts and stakeholders.

Interim Orders: During the pendency of the case, the Supreme Court issued several interim orders. In 1993, the court directed that the reservation policy would not be applicable to posts and seats meant for technical and professional courses. In 1997, the court directed that the creamy layer among the SEBCs should be excluded from the benefits of reservation.

Judgment: In 1999, the Constitution Bench of the Supreme Court delivered its judgment in the case. The court upheld the constitutional validity of the reservation policy but imposed certain restrictions and conditions. The court held that the reservation should not exceed 50% and that it should be reviewed periodically. The court also held that the creamy layer among the SEBCs should be excluded from the benefits of reservation.

Controversies and Criticisms: The judgment in the Indra Sawhney case has been the subject of several controversies and criticisms. Some have criticized the court for diluting the concept of equality by upholding the reservation policy. Others have criticized the court for imposing arbitrary restrictions and conditions on the policy. However, the judgment remains a landmark in Indian legal history and continues to shape the discourse on reservations in the country.

Judgment

The Supreme Court of India rendered a historic decision in the 1992 case of Indra Sawhney v. Union of India, also referred to as the Mandal Commission case. The issue concerned the implementation of reservations for the socially and economically underprivileged sectors of Indian society in government employment and educational institutions. The Supreme Court’s nine-judge panel issued the ruling, which upheld the constitutionality of OBC reservations in government employment and educational settings. However, it also set certain limitations and conditions for the implementation of reservations.

One of the main issues before the court was whether the classification of the OBCs as a separate category was constitutional. The court held that the classification was based on intelligible differentia and was therefore constitutionally valid. The court also addressed the issue of the maximum limit for reservations. It held that the total reservation should not exceed 50% of the available seats or posts. However, it also allowed for exceptional circumstances where a higher percentage of reservations may be justified.

The court further emphasized that reservations should not be granted on the basis of economic criteria alone and that social and educational backwardness should be the primary criterion for determining eligibility for reservations. The judgment also dealt with the issue of creamy layer exclusion, which refers to excluding the relatively well-off members of the reserved categories from the benefits of reservations. The court held that the creamy layer exclusion should be applied to the OBCs as well and that the exclusion should be based on economic criteria. The court also directed the central government to create a permanent body to regularly review the implementation of reservations and to identify the backward classes that are in need of affirmative action.

Overall, the Indra Sawhney v. Union of India judgment has had a significant impact on the implementation of reservations in India. It has helped to ensure that reservations are not granted arbitrarily or on the basis of economic criteria alone and has set clear guidelines for the implementation of reservations in a fair and just manner.

Analysis

Reservations for Other Backward Classes were implemented as a result of the Mandal Commission Report (OBCs).

The “Creamy Layer” theory was developed by the court to deny the benefits of reservation to specific OBC groups based on their socioeconomic standing.

The Indra Sawhney judgment is a landmark judgment for several reasons. First, it upheld the constitutional validity of reservation for OBCs, but with certain restrictions. The court held that the total reservation, including reservations for SCs and STs, should not exceed 50% of the vacancies. The court also held that the reservation policy should not be based solely on caste but on the backwardness of the classes. The court further held that the creamy layer, i.e., the socially and economically advanced among the OBCs, should be excluded from the benefits of reservation.

Second, the court gave a detailed analysis of the concept of social backwardness and its relationship with caste. The court observed that social and educational backwardness can be caused by several factors, including poverty, lack of access to education, and geographical isolation. The court held that caste can be a factor in determining social backwardness but cannot be the sole criterion.

Third, the court recognized the importance of affirmative action in ensuring social justice and equality in a society marked by historical discrimination and oppression. The court observed that the Constitution of India envisages a society based on equality and social justice, and affirmative action is necessary to ensure that the benefits of development reach all sections of society.

Fourth, the court recognized the need to balance the competing claims of different sections of society. The court observed that while reservation is an important tool for social justice, it should not be at the cost of efficiency and merit. The court held that reservation should be a temporary measure and should be reviewed periodically to ensure that it does not perpetuate backwardness or lead to reverse discrimination.

Fifth, the court recognized the importance of diversity in a democratic society. The court held that diversity is a source of strength and vitality in a democracy, and any attempt to homogenize society would be against the spirit of the Constitution.

The Indra Sawhney judgment has had a significant impact on Indian society and polity. First, it has led to the implementation of reservation for OBCs in government jobs and educational institutions, leading to greater representation of OBCs in the public sphere. The judgment has led to a debate on the efficacy of reservation as a tool for social justice. While some have argued that reservation has led to the empowerment of the socially and economically backward classes, others have argued that it has perpetuated caste-based discrimination and led to a decline in the standards of education and administration.

Conclusion and Suggestions

The Supreme Court upheld the government’s decision to provide reservations for SEBCs in a limited manner, while also placing certain restrictions on the quantum of reservation and the definition of SEBCs.

The case’s conclusion and suggestions include:

The government can provide reservations for SEBCs, but it should be based on their social and educational backwardness, not their economic status. The reservation for SEBCs should not exceed 50% of the total seats/jobs, and there should be no reservation for the creamy layer. The government should regularly review the list of SEBCs to ensure that only the truly backward classes receive the benefits of reservation. The reservation policy should not undermine the merit-based selection process, and the reserved category candidates must meet the minimum qualifying standards. The government should also work on improving the educational and social status of the backward classes to reduce their dependence on reservations.

This case analysis is done by Vishal Menon, from Symbiosis Law School, Hyderabad.

As the definition of the word says, defamation is hurt to a person’s reputation caused by a false statement. A man’s reputation is recognized as his property, and anyone who causes property damage is liable under the law; similarly, anyone who harms a person’s reputation is equally liable under the law. According to Black’s Law Dictionary, defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements. The term includes both libel and slander. Defamation is a statement published that negatively affects a person’s reputation and tends to reduce his reputation among generally right-thinking members of society or to cause people to avoid or shun him.[1]

In English law, there is a distinction between the forms under the categories of criminal defamation and civil defamation. Under criminal law, libel is an offence. Slander is not an offence under criminal law. Slander is a crime when supported by evidence, unlike libel, which is a crime under civil law but not under criminal law.

In Indian law, both slander and libel are recognized as criminal offences under Section 499 of IPC and no distinction is maintained between them[2]. In the law of torts, libel is actionable per se and slander is actionable. It implies that there must be evidence of defamation in a suit for slander.

In the case of D.P. Choudhary v Kumari Manjulata, defamatory news about Manjulata, a 17-year-old girl from a prominent family, eloping with a neighbour was published in the daily newspaper “Dainik Navjyoti”. As a result, her reputation was damaged and she experienced great humiliation because this information was recklessly and falsely reported. The Court held that the words published were defamatory and actionable per se and thus she was entitled to damages of Rs. 10000 [3].

ESSENTIAL CHARACTERISTICS OF DEFAMATION

1. The argument made or published must be defamatory.

The statement made or published must be defamatory i.e. which tends to lower the plaintiff’s reputation. Whether or whether a comment is defamatory will rely on how the general public, who are right-thinking people, are likely to interpret it.

In Arun Jaitley v Arvind Kejriwal,[4] the court held the statement by Arvind Kejriwal and his 5 other leaders to be defamatory.

In Ram Jethmalani v Subramanian Swamy,[5]the court determined that Dr Swamy was responsible for defaming Mr Jethmalani by alleging that Mr Jethmalani had accepted money from a prohibited organisation to defend the then-chief minister of Tamil Nadu in the Rajiv Gandhi assassination case.

2. It must refer to the plaintiff.

In a defamation lawsuit, the plaintiff must show that the comment in question referred to him; whether or not the defendant intended to defame the plaintiff is irrelevant. The defendant shall be held accountable if the person to whom the statement was published may reasonably infer that the statement was addressed to him.

In the case of T V Ramasubha Iyer v A.M.A Mohindeen,[6] The court found the defendants guilty of publishing a statement that was not intended to disparage them. According to the statement, a specific person transporting Agarbattis goods to Ceylon was detained for smuggling. The plaintiff was also one of the people carrying on a similar business, and due to this statement, his reputation was also severely damaged.

3. The imputation must have been made with the intent to injure and with understanding or reason to believe it would harm the person’s credibility.

The essence of the offence of defamation is the harm caused to a person’s reputation. In Sunilakhya v H M Jadwet,[7] the Court stated that the intention to cause harm to the reputation of a person is the sine qua non of the offence of defamation.

In Wahid Ullah Ahrari v Emperor,[8] the appellant was responsible for publishing two articles in a paper called the “University Punch”, Aligarh which contained scandalous accusations against the girls of the Girls’ Intermediate College of Aligarh. For solace and enjoyment, it was claimed that the college’s female students frequented the broad Marris Road, green meadows, and canal banks. It was also claimed that the Meena Bazar Exhibition was held within the college’s grounds and that university students, professors, Muslim and non-Muslim members of the local gentry, as well as gay officers, visited the location after purchasing tickets to go shopping with the female students. The essence of the offence of defamation is the publication of imputation with the knowledge that it will harm the reputation of the person defamed, and as these articles do beyond question imply that the girls of the college are habitually guilty of the misbehaviour described in the articles, the inevitable effect on the reader must be to make him believe that it is habitual with the girls of college to behave in this way. Thus, the Appellate Court upheld the order of the Lower Court and held the appellant guilty of defamation.

4. The statement must be made public, meaning it must be shared with at least one person other than the applicant.

The publication of defamatory statements to someone other than the individual who has been defamed is crucial in holding someone accountable. Without it, no defamation case will be possible. If a third party reads a letter intended for the plaintiff incorrectly, the defendant will likely be held accountable. However, there will be a legal publication if the defamatory letter written to the plaintiff is likely to be read by others.

In the case of Mahendra Ram v Harnandan Prasad,[9] the plaintiff filed a suit for the realization of Rs. 500/- as damages for defamation of the plaintiff by the defendant. The plaintiff’s case is that he is a respectable man and a man of substantial means and is held in esteem and regard by the public. He lived in a rented house belonging to the defendant who mainly resided in Sultanpur. The defendant sent a registered notice in Urdu from Sultanpur to the plaintiff at Siwan. The plaintiff was not conversant with Urdu and, therefore, got the notice read over by one Kurban Ali in the presence of several other persons. The notice contained defamatory and false allegations against him. The defamatory statement lowered the plaintiff’s estimation of the public and harmed his reputation. The plaintiff’s inability to read Urdu, which required that he have the letter read to him by someone else, was not enough to hold the defendant directly or constructively liable for publishing. Because it was unproven that the defendant intended to harm the plaintiff’s reputation and that he was aware that the plaintiff did not speak Urdu, the court determined that the defendant was not responsible for any damages.

When a passage appears to be innocent prima facie, the complaint can demonstrate that it disparages him by pointing to the context and nature of the publication. Innuendo is the justification given for why a statement is considered defamatory.[10]

Innuendo is a way to speak negative sentences in a very sarcastic or ironic way, which may appear to be positive but is not.

Illustration: X asks Z, “Do you know who stole B’s watch?

Z in return pointed at C and said, “well you know, who can”. This is innuendo as it was sarcastically said by Z while pointing at C. Under Section 499, defaming any person by innuendo is a form of criminal defamation.

Intention to defame is not necessary- Though the person about whom the statement is made thinks it is defamatory, even if the person making the statement thinks it is not, there has been defamation. The fact that the defendants were unaware of the circumstances giving rise to the accusations of defamation despite the statements’ innocence is irrelevant.

In Morrison v. Rithie & Co.,[11] in good faith, the defendants falsely reported that the plaintiff had given birth to twins. The plaintiff had only recently been married. The defendants were held liable even though they were unaware of this fact.

In another case,[12] the plaintiff filed a suit seeking a declaration that the resolution passed by the defendants with regard to the management of the affairs of a school was illegal. The statement also insulated that there was a doubtful relationship between ‘K’ and the plaintiff. According to the Karnataka High Court, the plaintiff’s moral character was attacked by the statements because they implied that she had engaged in dishonourable conduct by engaging in dubious relationships and activities with another person.

REMEDIES TO DEFAMATION

Every infringement of rights gives rise to a remedy. The Latin maxim ubi jus ibi remedium enunciates this. There are three defences available to defamation. These are as follows:

1. Justification or Truth

Simply demonstrating the veracity of a claim is not a valid defence in criminal law, but it is so in civil law. In Alexander v. N.E. Rly,[13] the plaintiff had been found guilty of boarding a train out of Leeds without possessing a valid ticket. If he did not pay the fine, he was subject to a fine and a fourteen-day jail sentence. However, after the verdict, the defendant published a notice stating that the plaintiff had been found guilty and given a fine or three weeks in imprisonment in the event of default. The plaintiff claimed that the defendant had lied by falsely reporting the punishment given to him.

In Radheshyam Tiwari v. Eknath,[14] the plaintiff, a block development officer, was the subject of several articles written by the defendant, a newspaper publisher, editor, and printer, alleging that the plaintiff had used unethical and corrupt tactics in a range of cases, including issuing false certificates, taking bribes, and accepting bribes. The defendant was found responsible for defamation because he could not prove that the information he published was truthful.

2. Fair Comment

The comment must be an opinion rather than an assertion of fact. The comment must be fair i.e., without malice. The matter commented upon must be of public interest. It is also essential that the facts commented upon must be either known to the audience addressed or the commentator should make it known along with his comment.

In R.K. Karnajia v. Thackersey,[15] the court held that if the defendant cannot establish the accuracy of a statement of facts published in a newspaper and makes significant accusations of dishonesty and corruption against the plaintiff, the defence of fair comment is predicated on those inaccurate facts, will also fail.

3. Privilege

Privilege confers exceptional status. When the law accepts that the plaintiff’s right to free expression surpasses his or her right against defamation, a defamatory statement uttered on such an occasion is not actionable. There are two categories of privileges.

1. Absolute privilege: In some instances, the individual speaking is given immunity, and no defamation action can be brought against him. It has three components.

• Parliamentary proceedings: Article 105(2) of the Indian Constitution grants parliamentarians immunity from prosecution if they talk freely during the parliamentary business.
• Judicial proceedings: Judges are protected under the Judicial Officers Protection Act of 1850. It also applies to attorneys, witnesses, and defendants in a lawsuit.

In T.G. Nair v. Melepurath Sankunni,[16] Whether a petition to the Executive Magistrate for the purpose of initiating legal proceedings under section 107 of the Criminal Procedure Code and simultaneously sending a copy to the Sub-Inspector of Police for the purpose of taking executive action fell under the purview of the defence of absolute privilege arose. The plaintiff sued the defendant for defamation. The court held that the statements made by the defendant in the petition presented to the magistrate and in the copy thereof which he presented to the Sub-Inspector of Police are both privileged.

2. Qualified privilege: This privilege is also available, but it requires that the statement be made without malice, i.e., without a wrongful intention. It is further necessary that there must be an occasion for making the statement.

ANALYSIS OF ARTICLE 19: FREEDOM OF SPEECH AND EXPRESSION

Freedom of Speech and Expression is one of the most fundamental aspects of a democratic democracy because it allows citizens to participate fully and effectively in the country’s social and political activities. People can share their thoughts and political perspectives due to freedom of speech and expression. It eventually leads to societal and economic well-being.

In the State of West Bengal v Subodh Gopal Bose, the court determined that the State has a responsibility to protect itself against unlawful activities and, as a result, can enact laws to that end. Article 19(1)(a) establishes a limited privilege. There cannot be any liberty that is unrestricted in nature and unregulated in practice to confer an unrestricted right.[17]

In the case of S Rangarajan v Jagjivan Ram,[18] it was held that the Court should bear in mind that restriction should be founded on the principle of least invasiveness, i.e. the restriction should be imposed in a manner and that an individual has the right to a good reputation and should not be subjected to a defamatory circumstance.

Subramanian Swamy v Union of India[19]

Justice Dipak Mishra and Justice P.C. Pant of the Supreme Court upheld the constitutional validity of the country’s criminal defamation laws enshrined under Sections 499 and 500 of the Indian Penal Code, saying that they do not interfere with the right to free expression. Several leaders and media houses suggested that it would limit freedom of expression. There is enough evidence to believe that the ruling is a blatant violation of free expression. Article 19 (2) of the Indian Constitution set reasonable limits on freedom of expression to prevent defamation. However, whether the provision covers criminal and civil defamation is unclear.

R Rajagopal v. State of Tamil Nadu[20]

This case dealt with the constitutionality of civil defamation. The Supreme Court of India cited a historic US Supreme Court ruling in New York Times v. Sullivan [21]in this case, which stated that a government official on duty can only recover damages if the truth argument is false and there is a willful disregard for the truth. The court considered the relationship between free speech and civil defamation in this decision. In view of the court, Article 19(1) of the Constitution imposes an unfair restriction on common law defamation.

CONCLUSION

After evaluating all of the significant features of defamation, we observe that the essence of defamation is the injury to a person’s reputation, and he has a good argument against the defendants for this injury. Libel and slander are the two types of defamation. Under Indian law, both are considered criminal offences. Certain privilege exceptions to this rule can protect the defendant from criminal liability.

It signifies that the Indian Constitution has given citizens certain rights, which they should exercise in moderation so as not to infringe on the rights of others. Defamation provisions operate as a check on Article 19 of the Constitution to protect people’s reputations.

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References

[1] Peel W.E. & Goudkamp J., Winfield & Jolowicz on Tort 360 (Sweet & Maxwell, 19th edn., 2014).
[2] Parvathi v. Mannar, (1884) ILR 8 Mad 175.
[3] AIR 1997 Raj 170.
[4] CS(OS) 236/2017.
[5] A.I.R. 2006 Delhi 300.
[6] A.I.R. 1972 Mad 398.
[7] A.I.R. 1968 Cal 266.
[8] A.I.R. 1935 All 743.
[9] A.I.R. 1958 Pat 445.
[10] PILLAI PSA & VIBHUTE K I, CRIMINAL LAW  1050 (LexisNexis, 14th ed. 2019).
[11] (1902) 4 F. 654.
[12] B.M. Thimmaiah v. T.M. Rukimini, A.I.R. 2013 Kar. 81.
[13] (1865) 6 B&S 340.
[14] A.I.R. 1985 Bom. 285.
[15] A.I.R. 1970 Bom. 424.
[16] A.I.R. 1971 Ker. 280.
[17] A.I.R. 1954 S.C. 92.
[18] (1989) S.C.C. 2 574.
[19] WRIT PETITION (CRIMINAL) NO. 184 OF 2014.
[20] A.I.R.1995 S.C. 264.
[21] 376 U.S. 254 (1964).

This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.

–Report by Eshna Ray

The petitioner in the case of Ashwini Kumar Upadhyay Vs. Union of India and Another, challenged the constitutional validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest an election for the same office from more than one constituency simultaneously. The petition seeks direction from the court to the Central government and the Election Commission to take appropriate steps to prevent this practice. The basis for the challenge is the Chief Election Commissioner’s request to the Prime Minister in 2004 to amend the act and the Law Commission’s 255th Report opinion that the act should be amended to restrict a person from contesting from multiple seats at a time. The petition is filed under Article 32 of the Constitution.

Facts:

The petitioner filed a petition to challenge the validity of Section 33(7) of the Representation of the People Act 1951, which allows a person to contest from more than one constituency for the same office simultaneously. The Law Commission in its 255th Report recommended amending the act to prevent this. The Election Commission of India and the Union of India filed counter-affidavits. The court heard arguments from both parties and the Attorney General for India. The court noted that the provision falls under the legislative domain and can only be challenged if there is a violation of a Fundamental Right or if the legislature lacks the competence to enact a law. Permitting a candidate to contest from more than one seat in a Parliamentary or State Legislative Assembly election is a matter of legislative policy, determined by Parliament. The court found no manifest arbitrariness in the provision or violation of Article 19 and concluded that the provision cannot be struck down as unconstitutional. The petition was therefore dismissed.

Plaintiff’s Contention:

The petitioner argues that contesting from multiple constituencies for the same office undermines the right of citizens to know about a candidate’s character, qualifications, and criminal record, as stated in Article 19 of the Constitution. When a candidate is elected from multiple seats, they have to vacate one, leading to a financial burden on the public and depriving the electorate of representation. The petitioner contends that this deprives the electorate of their right to know, as stated in Article 19(1)(a), and that this legislative issue should be addressed to prevent a drain on public resources through bye-elections. The contention is that the current provision allowing multiple constituencies is invalid.

Defendant’s Contention:

The defendant argues that the provision in the Representation of the People Act 1951 that allows a person to contest from more than one constituency for the same office simultaneously is a matter of legislative policy. It is within the legislative authority of Parliament to make the decision and enact or amend legislation. The defendant argues that unless there is manifest arbitrariness or a violation of a Fundamental Right in the provision, the Court cannot strike it down as unconstitutional. The defendant also mentions that Parliament has already intervened in the form of Act 21 of 1996 which restricts a candidate’s choice for an electoral contest to two seats in one and the same election.

Judgment:

The petition challenging the validity of Section 33(7) of the Representation of the People Act 1951, which permits a candidate to contest from more than one constituency in the same election, has been dismissed by the court. The court held that this provision, allowing a candidate to contest from multiple seats, is a matter of legislative policy and within the discretion of Parliament. The court stated that a statutory provision can only be struck down if it is made by a legislature lacking the competence to enact a law or if there is a violation of a fundamental right. In this case, the provision does not violate any fundamental rights, and therefore, the court cannot interfere with it. The Parliament has the authority to make legislative choices, and it has intervened in the past by restricting the choice of a candidate to two seats in the same election.

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