Tag: #legalanalysis

Laxmi Kant Pandey v. Union of India

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S.noContents
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 27th 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.

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.

Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others

Posted on
S.noContents
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.

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.

A.K. Gopalan v. The State of Madras

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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.

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.

P.V. Narsimha Rao v. State (1998)

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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