Tag: #ConstitutionofIndia

Citation of the case

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

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

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

Women have always played an important role in our civilization’s growth. They are the ones who developed and are a large part of the societal norm. They shape entire generations. Any community’s lifeblood is its women. They are supposed to look after things with all of their hearts while expanding their proportions to assist society’s shared realm, whether at home, at work, or on vacation. In the anthropology group, they are believed to be the most trustworthy.
As a result, women have not been treated equally to men since ancient civilization till now. Men consider women as second-class citizens. They are in a bad situation.

They don’t even have access to constitutionally guaranteed fundamental human rights. Women themselves are terrified of speaking out about this issue for fear of being ostracised from society and denied access to food and other basic necessities if they do. The majority of the time, the issue comes out of a sense of fairness and freedom, when they are denied the opportunity to engage in activities that need independence and are traditionally reserved for males. Due to ill-intentioned and flawed cultural attitudes, Indian women have been prevented from going further and bringing out their personalities in a stronger way. When a woman goes out to look for work, she is regularly interrogated.

The freedom to govern religious issues is guaranteed by Article 26 of the Indian constitution. Every religious denomination or segment thereof, subject to public order, morals, and health shall have the right-To create and maintain religious and philanthropic institutions; to govern its own religious affairs; to own and acquire movable and immovable property and to administer such property in conformity with the law. These guarantees, however, are exclusively available to Indian nationals and not to foreigners.

These, on the other hand, are constitutional provisions that are generally thought to apply to men. Despite Indian constitutions assuring, women in India still do not enjoy the same freedom to participate in, maintain, and oversee religious institutions.

Equality of Opportunity

The right to equality is protected under Articles 14 to 18 of the Indian constitution, and it is widely recognized. “The state shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws,” reads Article 14.

“The state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any of them,” as per Art15.

In matters of public employment, Article 16 provides equal opportunity.

“Untouchability is abolished, and its practice in any form is prohibited,” according to Article 17. Except for military or intellectual differences, Article 18 prohibits the use of titles. It is unlawful to admit titles from different countries, such as knighthood.

Conflicts between religions over women

In all religious customs, rituals, and traditions women are always considered second-class citizens. Superstitions are still being followed till today, those superstitions which were believed back in the past. The condition of Indian women has always been a source of controversy.

Various factors, including religious fundamentalism and irrational concerns arising from the minds of conservative elements of society, have been mentioned for these restrictions. It prevents women from exercising their religious rights and excludes them from religious areas. For example, some elements of the temple’s management do not let women enter and worship deities because they believe that women were not allowed even 1500 years ago and that if they do so, the temple will be destroyed.

Because they are in their reproductive phase, women between the ages of 10 and 50 are impure. Menstruating women are not permitted to enter the shrine. These irrational beliefs ignore the genuine biological phenomena of menstruation, which assists women in becoming mothers.

These irrational and radical pessimistic ideas depict a patriarchal society in which men consider women to be adjutants to themselves. However, thanks to the efforts of Bhoomata brigade leader Tirupati Desai, prohibitions on women entering the temple have been eased in Shani Shingnapur and Haji Ali. This is a significant achievement made possible by women activists, and it has shed light on modern women’s inner strength, which had previously been hidden.

Conservatives still believe in superstitions and myths that were once believed. These fallacies continue to be scrutinized before women’s rights and respect. The priests believe that if the customs are modified, God will become enraged and the cosmos will fall apart as a result of God’s vengeance. Women’s boundaries are being pushed back by these pitiful notions, forcing them to live a life that is pointless. Inside temples and religious institutions, which are virtually entirely ruled by men, there is a great deal of corruption. The authorities believe that including women will have an impact on their unlawful money-making activities, and they will take harsh measures against them. In political drama, many political parties do not support women, believing that doing so would grant women the same status as men and would be completely antagonistic to the culture. Some male political leaders molest women, and they are afraid that if a female leader comes to power, she will expose their crimes and harm their so-called reputation. As a result, in order to overcome such serious issues that exist in society against women, we must enlighten male members of society and convince them that women, too, should have equal standing in all spheres and that there should be no discrimination based on gender. Even at home, we must empower them and instill a desire for women’s education.

References

1. Essay on Religious Liberty and Women Rights (upscbuddy.com)

This article is written by Vidushi Joshi student at UPES, Dehradun.

Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

• Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
• Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
• Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
• Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

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

INTRODUCTION

Sedition law got its existence during the era of 1590 in England. It became a part of Indian statute by the arrival of British rule and got added to Indian penal code, 1870 as section 124A. But the visage of the law got redefined once when the case of sedition was charged on Bal Gangadhar Tilak, where the judge presiding over the trial widened the scope of law, equating disaffection to dis-loyalty. Again in 1922, Mohandas Karam Chand Gandhi was charged with sedition for showing disaffection towards British raj by instigating people against their rule via non- violent method.

Later, when India attained its freedom during 1947, there was wide discussion taking place on right to freedom; the use of sedition was debated. Personalities like Sardar Vallabhai Patel, Rajagopal Achari had supported the idea of sedition. But on the other hand individuals like KM munshi and Somnath Lahri was against the law of sedition. Eventually, the idea of sedition got abrogated from constitution but still exists in Indian penal code, 1870.  The seditious charges are still applied on people in India but, in Britain where the law got its origin got scrapped in 2009. Case of Arundati Roy, Kanaihya Kumar, Aseem Trivedi, Umar Khalid, Dhaval Patel etc. are some examples. The debate of whether sedition is good or bad is still on going.

DEFINITION OF SEDITION

Sedition is defined as an apparent act like speech, organisation which can led to rebellious activities against the established order. It can also include demolition of constitution and can also often led to incitement of serious mutiny against the authorities. Sedition can be any type of furore even if it is not aimed at direct violence against the law. Seditious words in written format is called as seditious libel. A seditionist is defined as a person who is engaged in the interest of sedition.

SEDITION UNDER SECTION 124 A OF INDIAN PENAL CODE , 1870 : PROVISIONS AND PUNISHMENT

The term sedition is defined under 124 A of IPC as:

            “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government shall be punishable with life imprisonment”.

It is considered as a reasonable restriction on freedom of speech which was drafted by Thomas Babington Macaulay. It is termed as a high value crime in Indian penal code. It is a cognizable offence in which the offender can be arrested without any warrant and it also allows the police to start investigation without any permission from court.  Sedition is defined as disloyalty towards the authorities. The punishment available for the crime of sedition are it being a non- bail able offence, three years of imprisonment to imprisonment for life added with a fine. The person accused with the crime of sedition cannot apply for a government job or have to live their lives without passport and have to attend the legal proceedings whenever necessary.

SEDITIOUS ACTIVITIES

An act is termed as seditious if it satisfies the following aspects:

• It should instigate hatred or discontent against the government.
• It should results in violence or public insurgency.
• It can include seditious libel: written or spoken sedition which includes posters etc.
• Raising of slogans against government.
• A speech of an individual that incite violence and disturbs public order.

DEFENCES AVAILABLE FOR THE LAW OF SEDITION

The possible defences that are available for sedition are:

1. He/ she didn’t tried to attempt disaffection or disloyalty.
2. The disaffection is not against the government.
3. He/she is not the one who made the remarks against the Government.

SEDITION AND RIGHT TO FREEDOM OF SPEECH OF INDIAN CONSTITUTION

Article 19 (1) (a) of the Indian constitution states that:  “all citizens shall have the right to freedom of speech and expression”. It also provides the right of a citizen to express their views through any modes like:  writing, films, pictures etc. it is deemed as a basic, fundamental right of every citizens of the country. But these rights are not absolute and can be restricted by the norms of reasonable restrictions under article 19(2).

  The sedition law was formulated during the era of British to impose restriction on people to not to speak against government policies. Many famous personalities like Bal Gangadhar Tilak. Mahatma Gandhi etc. was charged with the law of sedition. Currently there are various issues in which the law of sedition was misused to curtail people from excersing their right to speak against government policies. There is always an overlap that exists in case of sedition and article 19 (1) (a).

Long years back, during the drafting of fundamental rights, Sardar Vallabhai Patel urged to include sedition as a reasonable restriction under article 19 (2). Due to the majority opposition, the sedition charges were excluded from article 19 (2).  Currently there are over 8 reasonable restrictions. They are:

1. Sovereignty and integrity of the country.
2. Public order.
3. Contempt of court.
4. Defamation
5. Friendly relation with foreign states.
6.  Decency and morality.
7. Incitement to violence.

From this we can learn that sedition is not a ground for restriction against the right of free speech. But at the same time it can bring a curtail to our right of free speech if it incite public order. Article 124 A of Indian penal code, 1860 states that:

 “Any person by words either spoken or written or by signs or visible representation or otherwise bring or attempt to bring into hatred or contempt or execute or attempt to excite disaffection towards government established by law in India”. From this we can perceive that sedition will only be charged on a person, if his/ her words incite violence and disturbs public order.

CASE LAWS

1. Shreya singhal v. union of India [1]: this is the landmark case in the history of sedition law where the word “speech” was defined. In this case, Supreme Court stated that through you spoken or written words can propagate whatever they want to but doesn’t incite people into violence. If any such act had led to affect the peace and tranquillity of public then the person who committed the offence will be charged with sedition.
2. Kedar nath Singh v. state of Bihar [2]: in this case the constitutional validity of sedition law was questioned. Here, kedar nath Singh, former communist party leader of Bihar conducted a speech and he was convicted by first class magistrate on sedition charges. And the appeal before Supreme Court stated that the sedition law curbs the right to freedom of speech. In this case Supreme Court ruled that a person can say or write whatever he/she like about Government but with a condition of not inciting violence or not without disturbing public tranquillity.

CONCLUSION

Sedition law, a law which is over 150 years old are being successfully used by our successive Government. If we are taking a year in account, there are many cases reporting but only few of them reach the conviction stage. Many cases including Disha Ravi, Arundati Roy etc. was misused by police. Right to freedom of speech being a fundamental right will have an upper hand over sedition law. But if it ever curtails a person’s right to exercise their fundamental right, then the law should be scrapped.

ENDNOTES

1. AIR 2015 SC 1523
2. 1962 AIR 955
3. https://indiankanoon.org/
4. http://www.newindianexpress.com/cities/delhi/2017/apr/28/police-question-jnu-students-in-kanhaiya-sedition-case-1598800.html
5. CONSTIUTIONAL LAW OF INDIA BY DR. JN PANDEY

This article is written by Nourien Nizar student at Government law college, Ernakulum, Kerala.

Introduction 

Every society has its rules and regulations to control crime and punishments for the violation of the law. Criminal Justice is the system of practices and institutions of government directions to control crime. Double jeopardy is also part of the criminal justice system. The double jeopardy concept came to the abolition of double conviction for the same offense. It is based on the legal maxim ‘Nemo debet bis vexari, si constat curice quod sit pro una it made causa’ means man cannot be punished twice if the court has convicted him for the same offense. This maxim is mentioned in Section 26 of the General Clause Act and Section 300(1) of CrPC. It also follows the “Audi alteram” that no person can be convicted for the same offense. The doctrine of double jeopardy is defined under Section 300 of CrPC. 

Under the Constitution of India

Double jeopardy is the fundamental right (Part III) under Article 20(2). Article 20(2) defines double jeopardy “no person shall be charged and punished again for the same offense.” The term prosecution has three essential components under this article. 

Three essential components of prosecution have: 

• The person should be accused of an offence. The term an act or omission is punishable by law. 
• There should be a proceeding and prosecution of the case before the court or judicial tribunal. The defence of double jeopardy is only for those cases that have been decided under the judicial tribunal.
• When the tribunal accepts the administrative and departmental inquiry, these inquiries are not considered as proceedings of the court.

The Constitution of India is considered only autrefois convict and not autrefois acquit, which means the concept is for those a person is prosecuted and convicted by the court.

In the case, Maqbool Hussain v. the State of Bombay, the appellant came from abroad and brought some gold. He does not mention to the airport authority that he had brought gold. The customs authority impounded the gold under the Sea Customs Act. After some time, he was charged under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was a violation of his fundamental right, Article 20(2). The court held that the Sea Custom authorities are not a court or judicial tribunal. The prosecution under the Foreign Exchange Act is not a violation of Article 20(2). 

In this case, Venkataraman v. Union of India, the appellant, who was dismissed from her service after an inquiry by the Public Service Enquiry Act, 1960. Later, she was prosecuted under IPC and the Prevention of Corruption Act for corruption. The court held that the proceeding under the Enquiry Act did not amount to a prosecution. Hence, the second prosecution is not a violation of Article 20(2). 

Criminal Procedure Code

The concept of double jeopardy is defined under Section 300 of CrPC and its exceptions. 

• Section 300(1) – It states that if any person is found guilty under the competent court and convicted for an offence, then a person cannot be acquitted for the same facts. The second trial against the person shall be for different facts or charges.  Illustration – if a person is convicted under Section 221(1) then in the second trial he cannot be convicted again for Section 221(2) of the same Act. 

This section does not include dismissal of a complaint or discharge of accusation. 

• Section 300(2) – It states that if the person has committed many offences but was not tried in the first trial then he cannot be prosecuted for other charges in the second trial. It means that when a person is convicted in the first trial, he cannot be convicted under the same facts with another offence separately. Before the second trial of a convicted person then it is necessary to take the consent of the State government.
• Section 300(3) – It permits the second trial of a convict in those cases where new facts came and those facts did not exist in the first trial. This section is applicable for a conviction not in acquittal offences. The case will be retried only in those cases where some facts relating to the case have not come before the court. 
• Section 300(4) – This prescribes that after the new facts the person cannot be tried in the same court which does not have jurisdiction. The person shall be retried in a competent court which has jurisdiction. 
• Section 300(5) – It states that if any person is discharged under Section 258 of CrPC (the court has the power to stop the proceeding of the case at any stage with judgment). The stoppage could be after recording the evidence of a witness, the decision of acquittal or release of the accused has the effect of discharge. A person shall not be tried again for the same offence without the consent of the court.
• Section 300(6) – It states that Section 300 of CrPC shall not affect Section 26 of the General Clauses Act. Section 26 of the General Clauses Act prescribed that if the offence which is committed by the accused falls under two enactments then the accused shall be punished under one enactment. But the dismissal of the complaint and discharge of the accused is not an acquittal. Illustration – A tried for grievous hurt and was convicted. The injured person has died. Then he will be convicted for homicide.

Institute of Chartered Accountants of India v. Vimal Kumar Surana, in this case, the court held that if a person is convicted again for different laws, it cannot amount to double jeopardy. The defendant was charged under the Chartered Accountant Act. The court held that it did not mean he is convicted under the Chartered Accountant Act, so he cannot be convicted under the Indian Penal Code. The accused cannot take defense under Section 300 of Cr.PC because the accused is charged under two different laws.

Conclusion

The concept of double jeopardy protects the accused so that he should not be convicted twice. Double jeopardy is defined under the Constitution and Cr. PC. In the case, Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, the court held that clause 1 under Section 300 is wider than Article 20(2). Article 20(2) states only a person shall not be prosecuted twice for the same offense. Section 300(1) states a person shall not be tried and convicted for the same offense or same facts but a different offense. If a person is convicted twice for the same offense, it is a violation of the fundamental right. 

The concept intends to protect a person from multiple punishments for the same offense or to maintain the integrity of the justice system and to protect against the abuse of powers granted to criminal administration.

The article has been written by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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Introduction 

The Indian constitution was drafted in the mid-twentieth century which gave an advantage to constitutional makers, in so far as they could take cognizance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage, and traditions. The emergency provisions are taken from the Weimar Constitution of Germany. After the second world war, the allied forces to safeguard their troops still stationed in Germany asked for the formation of emergency provisions.

Similarities between German and Indian provisions

To understand the reason for taking emergency provisions from Germany we first need to establish what are the provisions in particular taken from Germany. Firstly, like India Germany also has 2 houses namely the Bundestag and Bundesrat, secondly like state emergency in India there is an internal emergency in Germany and the national emergency is common in both countries. The situation of both the countries are not similar before the proclamation of emergency like for example India follows common law and Germany is a civil law country, however, once the emergency is proclaimed both countries place similar restrictions on their citizens and this is an important factor by which one can say emergency provisions are taken from Germany, It is not the before effect that matches between both the countries but it is what happens after the proclamation of emergency that matches. 

One can argue that the aftereffects of emergency are similar in all countries worldwide, but the statement holds negligible truth. Like in countries where dictatorship exists fundamental rights are also suspended like in the case of North Korea, Turkey, Russia. Where the top leader holds absolute power to change the terms during an emergency. In recent times there is an example of Myanmar where the military threw out the democratically elected government led by Au Su Khi and imposed a martial rule suspending all the rights of the citizens. Even the basic right to life is hindered and the military explicitly kills the protesting citizens. Other provisions from Germany include suspension of fundamental rights during an emergency, apart from this all the other provisions too are from the Weimar constitution.

Discussions by the drafting committee 

While discussing the draft Art. 275 (Art. 352) that dealt with the promulgation of emergency H.V. Kamath warned the assembly about the German experience where Hitler used emergency provisions to establish a dictatorship, however, Hitler invoked many of the provisions of the Weimar constitution such as Art. 48 of the Weimar constitution that provided for the president to notify all the actions to the parliament, this provision is missing in the Indian constitution as observed by H.V. Kamath. 

An interesting fact emerged in this course is that the idea of a financial emergency was not taken from Germany, but it is from the American constitution which was implemented during the great depression as observed by Dr. B.R. Ambedkar. 

During the debate between our constitutional makers for the emergency provisions, a total of 12 countries were taken into consideration where the UK was most referred to followed by the USA and Germany. If we say the emergency provisions are taken from Germany does not mean the whole of emergency provisions are from the German texts but it means that the national emergency and the state emergency provisions are only taken from the German texts.

Reason for the adoption of emergency provisions from Germany

Germany was the most experienced country among all in terms of dealing with armed rebellion, civil war, and internal security and because Hitler exploited the country’s emergency provisions a system of checks and balances was established by the allied countries in Germany to prevent any such chances of dictatorship. 

The revised provisions and the amendments suggested earlier implemented in the year 1968 in the Federal Republic of Germany constitution made it the most favorable constitution to take emergency provisions from. Also, these emergency provisions were accepted and appreciated by all the allied countries around the world so it was best suited for India to take a reference from this nation. Under any form of government, a state of national emergency is considered as “hour of the executive” where the executives can misuse the authority, this was a matter of debate in the Federal Republic of Germany since the mid-1950s which Germany with numerous debates in their little parliament had resolved. 

This also gives our constitutional thinkers a reason to refer to the German text as this stand was still unclear in most of the countries like the US. As emergency is such a sensitive matter only nations who had ample experience in dealing with it should be taken into consideration and Germany was one such country. Also, after the partition of India and Pakistan based on religion, chances of civil war could arise in India which the German people had already experienced, so it made sense to our constitution-makers to take ideas from Germany to tackle the situation if it arises. 

The article has been written by Aakarsh Chandranahu, a student at Alliance School of Law.

The article has been edited by Shubham Yadav, a 4th year law student at Banasthali Vidyapith, Jaipur.

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Introduction:

Considering the history of racial and caste discrimination in the world, the two most prominent names pop in our minds, i.e., United States and India. Unfortunately, India leads ahead of the US in this particular issue. To abolish such discrimination, the government of India, since its independence has been putting efforts through protective discrimination for the welfare of the languishing units of society. 

Since the inception of the Constitution of India, certain provisions have been primarily enshrined under Part III (Fundamental Rights) and Part IV (Fundamental Duties) for empowering the concept of protective discrimination to fill the societal voids. 

Protective discrimination has been adopted as a tool for granting special privileges to the downtrodden and the underprivileged sections of society. These are the affirmative action programs, and also known as positive discrimination. The term “protective discrimination” implies that a certain right or privilege is provided to those who have been oppressed and discriminated against for ages. Discrimination against discrimination is based on the widely known quote “iron cuts iron”.  There’s no ambiguity as history conveys that one type of discrimination is curative and protective in nature whereas the other type is negative and destructive. The society’s most susceptible section includes-

• Scheduled Caste
• Scheduled Tribe
• Women
• Children
• Old age people
• Transgender

Origin:

The first instance of appreciating the need for such discrimination in Indian history, in favor of the underprivileged, could be seen during the Nationalist Movement. Mahatma Gandhi, a devout Hindu and a staunch believer in the caste system was himself the first leader to recognize the significance of this subject and to invoke the sense of right and wrong of the higher castes to this age-old social malady of relegating whole communities and labeling them as “untouchables”. He renamed these untouchables as “Harijans” (people of God). He strived to provide this policy a religious sanction. He was well aware of the political motive of inaugurating this large body of people into the political mainstream to make the freedom movement more broad-based. 

The Indian Constitution largely followed the pattern of the Government of India Act, 1935, and made provisions for positive discrimination in favor of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted approximately 23% of the divided Indian population. Besides reservation in parliamentary seats for them, they were also given advantages through jobs in the public sector, admission in schools and colleges, various pecuniary benefits for their overall development, and so on. Besides assuring the fundamental right of equality of all citizens before the law, the Constitution of India categorically laid down that “nothing in the constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the SCs and STs”.

Statutory Provisions:

The following articles of the Constitution of India provide laws in favor of the concept of positive discrimination:

• Art. 15(5): The aforementioned sub-section was enunciated by the 93rd Constitution Amendment Act, 2006. It provides that nothing in Art. 15 or in sub-clause (g) of Art. 19 shall prevent the State from making any special provision, through regulation, for the advancement of any socially and educationally backward classes of citizens or SC and ST. Such unique provisions relating to admission to an educational institution and are inclusive of non-public educational establishments, whether aided or not by using the state, other than the minority educational establishments referred to in clause (1) of Art. 30
• Art. 30(1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
• Art. 16(4): The aforementioned article authorizes the State to make provisions for the reservation of posts in government jobs and training in favor of any backward class, which, in the opinion of the State , is not always adequately represented within the State’s services.
• Art. 16(4-A): The said article was introduced through the 77th Amendment, enabling the State to make any reservation provision in matters of promotions for SC and ST, which, in the State’s opinion, are not competently represented within the State’s services.
• Art. 330- Said article permits reservation of certain seats in the autonomous district of Assam for the SC and ST.
• Art. 332- The aforesaid article provides the reservation of seats for the SC and ST in legislative assemblies of all the states except the scheduled tribes that are within the autonomous district of Assam.

Current Scenario:

The issue of reservation has been an all-time favorite issue in India. However, a PIL has been filed recently in the Hon’ble Supreme Court of India by an advocate who is also an MBBS doctor. The petitioner has posed the following questions before the apex court:

• Are caste-based reservations in education for eternity in this country or is there a time beyond which they would be rolled back or at least to start rollback?
• Isn’t there any other affirmative action than to provide reservations in education like giving the weaker sections special education, coaching, financial aid, etc. to enable them to compete in the open?
• Shouldn’t we empower the weaker sections by making them more competitive rather than depowering them by eternal crutches of reservation?
• Would eternal reservations in education not divide and fracture the society permanently, promote inequality, and ignite hatred, ill-will, and resentment not only against the reserved class but also against the system?
• Being the protector of fundamental rights, is it not the bounden duty of the Supreme Court under Art. 14, to put a halt to the reserve discrimination being met to the unreserved class by the eternal reservations?

As of now, a division bench of Justice Nageshwara Rao and Justice Hemant Gupta on June 28th had adjourned the plea for a week, after a letter seeking adjournment was circulated by the petitioner in person.

Petitioner failed to acknowledge that the communities which have been treated as slaves in our history for ages can’t be revived in a snap. The damage done in centuries cannot be restored in a few decades. The objective of reservation seems nowhere near as instances of atrocities and societal exclusion of a person belonging to a lower caste in the society are not unfamiliar yet. A few from weaker sections might have grown financially strong with independence but people often, relying on half information, tend to hate the element of reservation, and fail to appreciate that our constitution provides reservation to those sections of society who are “socially” and “educationally” backward. The ground reality is itself illustrated by the petitioner’s second issue that the weaker sections still need affirmative actions for enabling them to compete naturally. Even after 74 years of independence and reservation provisions, there’s a long way ahead to achieve a non- discriminate nation for global development.

However, my conscience tends to partially agree with the petitioner here. Reservation in jobs, educational institutions, etc. cannot go till eternity. It will divide and fracture society if followed for an indefinite period. As excess of anything causes harm. Therefore, for eradicating both discrimination and reservation, all of us primarily need to end discrimination from our minds and help society to grow unitedly thereby leading to no requirement of reservation.

Conclusion:

Competition must be fair by all means and all the competitors must be treated equally, but only if they come from a similar social and educational background. A country must aim to progress within itself before competing in the world and that is exactly what our constitution aims to do. Coronavirus sees no caste and creed before attacking and has been haunting the whole world for the last one-n-half year. All it needs for its development are human beings, though ill. Similarly, we too need to unearth these fallacies as soon as possible for the overall development of our nation. Appropriate actions must be taken for a steady improvement. Lastly, protective discrimination is a boon, but a bane if followed till eternity.

The article has been written by Shikha Sagar, a third-year BA LLB student of Vivekananda Institute of Professional Studies, Delhi.

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Case Number

Writ Petition (Civil) No. 824 of 1988, Writ Petition (Crl.) Nos. 745-54 of 1950.

Equivalent Citations

(1997) 8 SCC 114, AIR 1997 SC 3021, 1997 (4) SCALE 657

Bench

K. Ramaswamy and D. P. Wadhwa, JJ.

Date of Judgment

July 9, 1997.

Relevant Act/  Section

• Articles 14, 15(3), 16(1), 21, 23, 24, 38, 39(f), 45 and 46 of the Constitution of India
• The Immoral Traffic (Prevention) Act, 1956
• Juvenile Justice Act, 1986 (amended and now known as the Juvenile Justice (Care and Protection of Children) Act, 2015)
• UDHR 1948
• CEDAW 1979

Facts and Procedural History

In this case, a Public Interest Litigation (PIL) was filed in the Supreme Court of India by the Petitioner, who was an advocate. He had filed the petition after reading an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published on July 11, 1988, in a magazine named ‘India Today’. In the petition, he had prayed for issuing an appropriate writ directing the setting up of distinct educational facilities for the children of prostitutes (referred to as “fallen women” by the Court throughout the judgment), up to sixteen years of age so as to prevent them from getting involved in the depraved and unethical way of life.

However, the Court passed an order on November 15, 1989. According to the order, the Apex Court was of the view that setting up different educational institutes and hostels would isolate the prostitutes’ children, which would be against the well-being of these children as well as the society in general. Though the Court did not approve the plea for separate hostels and schools, it stated that to help the separation of prostitutes’ children from their mothers, the availability of sufficient accommodation in reformatory homes and hostels was needed.

The Supreme Court set up a committee of four advocates and three social workers to look into the matter and suggest appropriate actions. The Committee, with Shri V. C. Mahajan as its chairman, probed into the working of government agencies. The report of the Committee is as given below:-

• The focus was on both, recognized red light areas as well as areas that were not recognized.
• According to the report, it was due to poverty that families were sending their children for prostitution.
• It stated that destitution, social intolerance, family customs, poor health, desolation, and lack of alternate livelihood sources were the main reasons due to which the women were not willing to give up prostitution.  
• It also stressed the role of NGOs in the reestablishment and education of the children of prostitutes.

Issues Before the Court

The main issues listed by the Court after the report are:-

• What are the rights of the prostitutes’ children and what should be the course of action to separate the children from their mother and other such people so as to provide them safety and ensure their rehabilitation in the nation’s mainstream?
• What strategy should be formulated to eliminate prostitution?

Ratio of the Case

In most cases, the victims of prostitution are the underprivileged and illiterate segment of society who are targeted by the rich and influential sections. This is a form of discrimination and hence, violative of one’s human rights. The children of the prostitutes also have the right to equality, dignity, equal opportunities, protection, and care, and deserve to be a part of the social mainstream. Moreover, it is the society that is responsible for the sufferings of these women and thus the society is responsible for the elimination of women trafficking and rescuing the victims. It is the duty of the State to ensure that the victims are rescued, rehabilitated, and economically empowered.   

Decision of the Court

The Court gave comprehensive directions regarding the rescue and reestablishment of prostitutes and their children in society. These directions include:- 

• It stated that the women involved in prostitution were not offenders, rather they should be viewed as victims of their unfavorable socio-economic conditions. It emphasized making the women economically independent through self-employment and vocational training.   
• The Court directed the setting up of juvenile homes for the children to ensure their rehabilitation and safety. 
• It directed for the composition of a committee to study the issue and formulate schemes for the upliftment of the victims.

However, the second justice, Justice Wadhwa dissented with the opinion of Justice Ramaswamy on one issue. He observed that in the present case, the issue raised in the petition was the rehabilitation of the children of prostitutes and not the elimination of prostitution or the rehabilitation of the prostitutes. 

After this judgment, a review petition was filed and the petition was transferred to a three-judge bench, which was larger than the bench in the original case. The decision in the review petition overruled the first judgment relating to the directions formulated for the elimination of prostitution. But the guidelines formulated for the prostitutes’ children in the first case were upheld in the review petition also. 

This case analysis is written by Muskan Harlalka, a second-year BA LLB (Hons.) student at the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Introduction

PIL means litigation filed for the protection of “Public Interest”, like Pollution, Terrorism, Road safety, Constructional hazards, etc. Any matter where the interest of the public at large is affected is often redressed by filing a Public Interest Litigation. The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it had been designed to supply representation to previously unrepresented like the poor, the racial minorities, unorganized consumers, citizens who were hooked into the environmental issues, etc.

Public interest litigation is the power given to the general public by courts. The person filing the petition must convince the court that the petition is being filed for public interest and not for personal reasons.

The court itself may take suo moto cognizance of the cases may commence on the petition of any public-spirited person.

Some of the matters which are considered under PIL are:

• Bonded Labour matters
• Neglected Children
• Non-payment of minimum wages to workers and exploitation of workers.
• Atrocities on women
• Environmental pollution and disturbance of ecological balance
• Food adulteration
• Maintenance of heritage and culture

Origin and Evolution of PIL in India

The concept of public interest litigation was introduced for the first time in India by Justice Krishna Iyer, in 1976 in the case of Mumbai Kamagar Sabha v. Abdul Thai.

The first-ever reported case of Public Interest Litigation was Hussainara Khatoon v. the State of Bihar (1979) that focused on the inhumane conditions of prisons and under trials, which led to the acquittal of about 40,000 under trials prisoners.

The right to speedy justice emerged as a fundamental right that was not given to those prisoners. A similar set pattern was adopted in later cases.

A new period of Public Interest Litigation Movement was started by Justice P.N. Bhagwati in the case of SP Gupta v. Union of India.

Some of the landmark judgments on PIL were:

• Indian Banks’ Association, Bombay & Ors. v. M/s Devkala Consultancy Service and Ors.
• M.C Mehta v. Union of India.
• Vishaka v. the State of Rajasthan.

Facts Responsible for the Growth of PIL in India

The character of the Indian Constitution: India features a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.

The liberal interpretation of locus standi also means that any person can apply to the court on the behalf of the people who are financially or physically unable to return before they are helped. Judges themselves have in some cases initiated suo moto action supporting newspaper articles or letters received.

Although social and economic rights given within the Indian Constitution under Part IV aren’t legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable, for instance, the “right to life” in Article 21 has been expanded to include the right to free legal aid, right to live with dignity, right to education, etc.

Judicial innovations to assist the poor and marginalized: In the Bandhua Mukti Morcha case, the Supreme Court put the burden of proof on the respondent stating it might treat every case of forced labor as a case of bondage unless proven otherwise by the employer. Similarly, in the case of Asiad Workers, Justice P.N. Bhagwati held that anyone getting a wage can approach the Supreme Court directly without going to the labor commissioner and lower courts.

In PIL cases where the petitioner isn’t in a position to supply all the required evidence, either because it’s voluminous or because the parties are weak socially or economically, courts have appointed commissions to gather information on facts and present it before the bench.

Drawbacks Related to Public Interest Litigation

A PIL may give rise to the matter of “competing rights”. When the Court orders the closure of a polluting industry, the rights and interests of the workmen are also being violated as their only source of livelihood is being snatched away from them and this may not be taken into account by the court.

It’s for the reason that people can misuse and file frivolous PILs motivated by personal and selfish reasons or malice, the Courts have reiterated time and again that PIL isn’t “personal interest litigation” for corporate, personal, and political gains. This results in the overburdening of the courts.

In the process of solving socio-economic issues or a drug related to the protection of the environment, the judiciary may in certain cases exercise judicial overreach through the PILs.

There is an inordinate delay within the disposal of PIL cases especially matters involving the poor and disadvantaged. This defeats the entire purpose of speedy justice and dilutes the importance of judgment.

Conclusion

Public Interest Litigation has departed from the normal system of litigation and caused a system that involves initiating an action to enforce the interest of the general public at large. Over the years it’s become a potent tool for the poor, illiterate and underprivileged to possess access to the Courts and seek judicial redress by filing an application under Article 226 to the Supreme Court and Article 32 to the Supreme Court.

Therefore, PIL has democratized access to justice by relaxing the rule of locus standi. Thus, any public-spirited person or social activist or group can now approach the Court on behalf of a particular group or class of persons, especially the oppressed and marginalized. The main reason why PIL has flourished in India is that the Constitution of India through its Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework to manage the relationship between the state and the citizens and also between citizens.

The accountability of the government towards the rights and interests of the poor and disadvantaged has increased in PIL within the country. The relaxation of the normal rule of locus standi enables a person to approach the Court and represent those that are socio-economically disadvantaged and unable to get redressal. Therefore, PIL has been a crucial tool in bringing about social change; upholding the Rule of Law enshrined under Article 14, and thereby creating a fragile balance between law and justice.

Bibliography

1. Anasuya Mukherjee, Public Interest Litigation- Genesis, and Evolution, https://lawcirca.com/public-interest-litigation-genesis-and-evolution/.
2. Public Interest Litigation, https://www.drishtiias.com/to-the-points/Paper2/public-interest-litigation.
3. Rachit Garg, All you need to know about Public Interest Litigation (PIL), https://blog.ipleaders.in/need-know-public-interest-litigation-pil/.

This article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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