Tag: #SupremeCourtjudgement

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

Abstract

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

Introduction

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

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

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

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

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

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

Constitutional Theory in Different Countries

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

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

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

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

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

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

Some of the US’s constitutional theorists are:

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

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

Constitutional Theory in the Indian Context

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

Background of Formation of the Constitution

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

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

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

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

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

Salient features of the Indian constitution

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

Conclusion

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

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Citations:

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

References:

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

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

CITATION

(2017) 9 SCC 1

INTRODUCTION

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

FACTS

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

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

PROCEDURAL HISTORY

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

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

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

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

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

JUDGEMENT AND ANALYSIS

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

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

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

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

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

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

CONCLUSION

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

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ENDNOTES:

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

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

-Report by Arun Bhattacharya

The honourable Supreme Court of India on Monday (27^th of February, 2023) while allowing an appeal matter (SIRAJUDHEEN versus ZEENATH & Ors.) observed that “merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter.” 

FACTS

The original matter concerned a civil suit filed by one of the sisters who were involved in an agreement regarding their father’s property. The primary cause of action arose because of a fraudulent or coercive sale deed executed between the original plaintiff and the present appellant which as per the former’s claim was signed under the misconception that it was an agreement of a completely different subject matter but later found out to be a sale of her portion or share in the partitioned property. The trial court dismissed the suit while the High Court in the appeal is not satisfied by the evidences and was confused to appropriately provide relief and hence remanded the matter back to the Trial Court for further incorporation of evidences. The respondents in that matter happened to be aggrieved by the same and filed the present appeal before the apex court.

APPELLANT’S CONTENTION

The counsel for the appellants primarily contended the fact that the honourable High Court was just in remanding the matter back to the Trial Court whereby giving the original plaintiffs another opportunity to adduce further evidences. This fact was a point of contention since it was their obligation while filing the initial suit and such ignorance should not be and cannot be made ground for furthering a matter which is already predisposed off. 

RESPONDENT’S CONTENTION

The respondent/ original plaintiff’s counsel tried to convince the apex court of the vitality of the stance of the High Court while remanding the matter. They highlighted the merits of the case that since the document/ sale deed was void, it was appropriate on part of the High Court to provide such an opportunity to the aggrieved parties to submit further documents in favour of supporting the same.

JUDGEMENT

The honourable apex court while pointing out some of the errors committed by the High Court while deciding the aforementioned appeal observed that

“the High Court has not at all referred to the findings of the Trial Court and it is difficult to find from the judgment impugned as to why at all those findings were not to be sustained or the decree was required to be reversed”.

The fundamental factor that the honourable Supreme Court of India emphasised was that the High Court was unable to provide just and proper reasons for remanding the matter back to the Trial Court when the latter had already concluded the same. Thus the lack of particular evidences which was expected by one party to be submitted but was not cannot be a just reason to remand the matter back to a court which had already concluded the matter on the basis of already provided evidences. This was the stance of the apex court while allowing the appeal and setting aside the impugned order of the High Court.

READ FULL JUDGEMENT: https://bit.ly/3KFGFCl

S.no	Contents
1.	Introduction
2.	Judicial and Executive acts: A General Exception under IPC
3.	Judicial acts as an exception
4.	Executive acts as a general exception
5.	Analysis regarding the judicial and executive acts
6.	Issues
7.	Suggestions
8.	Importance and need in the present scenario
9.	Conclusion

Introduction

The Indian Penal Code (IPC)^[1] contains several provisions that serve as general exceptions to criminal liability. These provisions exempt certain actions from being considered crimes under certain circumstances.

For example, Section 76^[2] provides that acts done by a person who is bound by law to do them are not crimes, while Section 80 provides that an act done in good faith for the benefit of a person without their consent is not a crime if it would otherwise have been so. Section 81 provides that an act done by several persons to further a common intention is not a crime if done in good faith for the advancement of religion, science, literature, or fine arts. The general exceptions under IPC are meant to provide a reasonable balance between the protection of individual rights and the public interest.

Judicial and Executive acts: A General Exception under IPC

Section 197 of the Indian Penal Code (IPC) provides a general exception for acts performed by a public servant in the discharge of his official duties, or by any person acting under the direction of a public servant if such act is done in good faith. This means that criminal proceedings cannot be initiated against such individuals unless prior sanction is obtained from the appropriate authority. This provision is intended to protect public servants from baseless lawsuits and ensure that they are able to perform their duties without fear of legal harassment.

Judicial acts as an exception

The judicial act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by judges, magistrates, and other public servants in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Case Laws that give us a vivid idea regarding the prevailing exceptions

There are several case laws that have interpreted and applied the judicial act exception under Section 197 of the Indian Penal Code (IPC). Some of the notable cases include:

R. Rajagopal v. State of Tamil Nadu^[3]: In this case, the Supreme Court of India held that the judicial act exception under Section 197 of the IPC applies only to acts performed in the exercise of judicial or quasi-judicial powers and does not extend to acts performed in an administrative capacity.

State of Maharashtra v. Narayan Dattatraya Apar^[4]: In this case, the Supreme Court held that the judicial act exception under Section 197 of the IPC applies only to acts performed by public servants in good faith and within the scope of their official duties and not to acts of omission or commission that are mala fide or beyond the scope of their official duties.

K.R. Lakshmanan v. State of Tamil Nadu^[5]: This case dealt with the issue of whether the prior sanction was required before a public servant could be prosecuted for an act performed in the discharge of his official duties. The Supreme Court held that prior sanction was required before the prosecution could be initiated against a public servant under the judicial act exception in Section 197 of the IPC.

These cases provide guidance on the scope and application of the judicial act exception under Section 197 of the IPC and have helped to clarify the rights and obligations of public servants in the performance of their official duties.

Executive acts as a general exception and what makes it different from judicial acts

The executive act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by executive officials, such as government employees and officers, in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Analysis regarding the judicial and executive acts

The judicial act exception under the Indian Penal Code (IPC) serves an important role in protecting public servants, including judges and magistrates, from frivolous or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. This exception helps to ensure that public servants can carry out their duties without fear of legal harassment, which is essential for the effective functioning of the justice system.

However, the scope and application of the judicial act exception under Section 197 of the IPC have been the subject of debate and legal interpretation in several cases. Some critics argue that this exception provides too much protection for public servants, allowing them to escape accountability for actions that may have been taken in bad faith or outside the scope of their official duties.

Issues

The scope and application of the judicial act exception under Section 197^[6] of the IPC have been the subject of legal interpretation in several cases, with some critics arguing that this exception provides too much protection for public servants and allows them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

For example, the Supreme Court of India has held that the judicial act exception under Section 197 of the IPC applies only to acts performed by a judge in the exercise of judicial or quasi-judicial functions, and does not cover acts performed in administrative or executive capacities. This interpretation helps to ensure that public servants are not immune from prosecution for acts taken in bad faith or outside the scope of their official duties.

Another issue with the judicial act exception under Section 197^[7] of the IPC is that it requires prior sanction from the appropriate authority before criminal proceedings can be initiated against a public servant. In some cases, this requirement has been criticized for being too burdensome, as it can result in delays in prosecuting public servants for criminal offences.

Suggestions regarding the judicial and executive act exceptions of IPC

One suggestion to address these concerns could be to clarify the definition of “good faith” under Section 197 of the IPC so that it better captures the essence of what constitutes an act performed in good faith. This could help to ensure that public servants are not immune from prosecution for acts of bad faith or malicious intent.

Another suggestion could be to provide a mechanism for the review of decisions regarding prior sanction for prosecution under Section 197 of the IPC so that individuals who believe that they have been wrongly denied the right to prosecute a public servant can have their case heard and reviewed.

Overall, it is important to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with the suggestions outlined above, could help to achieve this balance.

Importance and need in the present scenario

The judicial and executive act exceptions under the Indian Penal Code (IPC) serve an important function in protecting public servants from baseless or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. These exceptions ensure that public servants can perform their duties without fear of legal harassment, which is essential for the effective functioning of the justice system and the administration of government.

However, the scope and application of these exceptions have been the subject of debate and legal interpretation in several cases, with some critics arguing that they provide too much protection for public servants and allow them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

To address these concerns, suggestions have been made to clarify the definition of “good faith” under Section 197 of the IPC and to provide for a mechanism for review of decisions regarding prior sanction for prosecution. A careful review and re-evaluation of the judicial and executive act exceptions under Section 197 of the IPC could help to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties.

Conclusion

In summary, the judicial and executive act exceptions under the IPC play a crucial role in the functioning of the justice system and the administration of government, but it is essential to ensure that they are applied in a manner that balances the protection of public servants and the need for accountability. The judicial act exception under the Indian Penal Code (IPC) is an important provision that provides immunity from criminal prosecution for public servants, including judges and magistrates, for acts performed in good faith in the discharge of their official duties. This exception is intended to protect public servants from frivolous or malicious lawsuits, which could have a chilling effect on the administration of justice.

To address these concerns, some have suggested that the definition of “good faith” under Section 197 of the IPC be clarified so that it better captures the essence of what constitutes an act performed in good faith. Additionally, a mechanism for review of decisions regarding prior sanction for the prosecution could be established, to ensure that individuals who believe that they have been wrongly denied the right to prosecute a public servant have their case heard and reviewed.

In conclusion, while the judicial act exception under the IPC serves an important function in protecting public servants from baseless or malicious lawsuits, it is important to ensure that it is applied in a manner that balances the protection of public servants and the need for accountability. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with appropriate reforms and clarifications, could help to achieve this balance.

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Endnotes:

1. Indian Penal Code, 1860, Act no. 45 of 1860
2. Indian Penal Code, 1860, Sec. 76, Act no. 45 of 1860
3. R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632
4. State of Maharashtra v. Narayan Dattatraya Apar, (1981) 83 BOMLR 553
5. K.R. Lakshmanan v. State of Tamil Nadu, 1996 SCC (2) 226
6. Indian Penal Code, 1860, Sec. 197, Act no. 45 of 1860
7. Ibid

This article is written by Prashant Prasad, a second-year law student from University Law College.

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

S.no	Contents
1.	Introduction
2.	How crime is defined by society?
3.	Analysis of crimes against the society
4.	Recent developments
5.	Conclusion

Introduction

A crime committed against society at large that puts society’s safety at risk is known as public tranquillity or offense against society. It is not necessary that an actual offence is committed towards society, even an apprehension is created in the mind of the public at large or society, even if an apprehension is created in the mind of the public at large or the society that they are under the threat of an offense or an action by any person would result in an injury to them is necessary enough to constitute to an offense against the society. These offenses are usually committed by individuals in a group with a common object to hamper the peace of society. 

How crime is defined by society?

The word society has been derived from the Latin word ‘ socius meaning association. Therefore, a society can be defined as an ‘association of people or people in a group who are related to each other by means of some common traits. While governing a society, the interests of the people are taken at large rather than depending on the needs and wants of one single person. The requirement of the people at large is considered. Different Legislations are not passed for different individuals, for one single society common legislation is applicable to them. A committed is defined as a crime only when it is wrong in the eyes of society. 

If a particular act is not opposed by a group of people, then it can never be considered an offense. For example, trespass, money laundering, and bribery these acts wouldn’t be a crime if it was not wrong in the eyes of society. Therefore, what society thinks is important in defining a crime.

The foundation of a society lies in the maintenance of peace and morals. Therefore, chapter 8 of IPC has been framed to deal with those actions which would put society’s peace at risk. The offenses which put public safety at risk can be classified into rioting, unlawful assembly, affray, assembly of five or more people in a situation where dispersion has been ordered and promotion of enmity between different classes of people.

Analysis of crimes against the society

Section 141- unlawful assembly: Every person has the fundamental right to assemble peacefully under Article 19(1)(b). However, certain circumstances given under section 141 of the IPC lead to unlawful assembly and it is considered a criminal offense. Any assembly which has been formed with 5 or more people with the intention to commit an unlawful offense is called an unlawful assembly. People in groups with a common intention and object to gather unlawfully and create a threat to the public peace is always dangerous. This is the main reason why unlawful assembly is criminalized. When an assembly gathered lawfully turns out to be aggressive and indulges in unlawful means, it will come under the purview of section 141 of IPC. The instances where there is a shift from lawful assembly to unlawful assembly is when the object of the assembly changes to resist legal proceedings, using criminal force against the state or any public servant, to committing trespass or mischief of the property of any person, to using criminal force against a person to make him do something against the law. 

In the case P.S. Kirubakaran v. Commr. of Police, Vepery (2021)[1], In this case, a group of advocates indulged in certain criminal activities like forcibly getting possession of certain properties, destruction of properties, etc., and therefore they caused the interruption in the peace of the society. The court charged them with the offense of unlawful assembly and took measures to curb such practices.

In the case of Amrika Bai v. State of Chhattisgarh (2019).[2], dealing with the offense of unlawful assembly and the scope of section 141 of IPC was analysed. In this case, the cattle of the deceased jumped on the door of the appellant as a result exchange of words took place and the appellant started abusing the deceased after which an attack by a group of people took place, and eventually the deceased died. The appellant also sustained injuries during the attack and challenged before the court that he was unarmed during the attack and therefore he is not a part of the unlawful assembly. The court acquitted the accused.

 Merely a person being part of an assembly that has indulged in an unlawful act is not enough, it is also necessary that at the time of the commission of the act, the people indulged also had the same object. Therefore, in the present times, section 149 is one of the most misused sections as it is difficult to interpret every person’s object in an assembly and there are chances of misrepresentations where an innocent person would be charged with a crime.

Section 146- Rioting: Rioting is dealt with under sections 146 and 147 of the IPC. Riot is similar to that unlawful assembly, and the only difference is the term violence. If an unlawful assembly starts to get engaged in any violent act, it will be known as a riot. Therefore, the ingredients of rioting are the same as that of unlawful assembly which is a common intention. Engaging in violence is always a threat to the harmony of society. It will affect the co-existence of society. . Rioting Is committed as a means to show the group’s intention to oppose the policies of the government, the outcome of any legislation passed or a judgment made, etc. Under most circumstances, grave and sudden provocation lead to riots. An act done in sudden provocation is considered a defense under IPC. But the impact of this act is so huge as it can even cause disintegration and heavy losses and damages.

In the case Bilkis Yakub Rasool v. State of Gujarat (2019)[3], the appellant was a victim of gang rape that occurred during a riot in the year 2002 which came to be known as godhara train incident. She also lost her family during the attack. The Supreme Court in this case gave a compensation of 50 lakhs to the appellant under section 147 of IPC who was surviving with a daughter deprived of basic necessities of life such as food, shelter, etc. 

Affray: Affray is usually committed by 2 or more people when they fight in public which disrupts the peace of society. The offense is committed in such a manner that there must be some sort of disturbance to the public arising out of the actions of the people engaging in the fight. For example, If one person comes and attacks another person by knocking him down in a private place, it does not amount to affray as there is no chance of the act disrupting the peace of the society. Punishment for the offense of affray is imprisonment of one month or fine or both. Punishment is less compared to rioting and unlawful assembly only because of the fact that the impact caused by the offense of affray is much less.

Section 153- Promoting enmity between classes. The outcome of a clash between different communities of society is huge. Thus, the need to criminalize the act of causing enmity was considered, and causing enmity between people belonging to different classes or different sections of society based on class, sex, religion, language, place of birth, etc. is considered a criminal offense. This section is wide in nature and consists of those offenses like moral corruption. The validity of this section has been challenged overtime on the basis that it is a violation of Article 19(1)(a) as it restricts freedom of speech and expression for any statement made which can create an enmity between communities. But the validity of this section was still upheld considering the fact that creating disruption among communities can lead to a threat to the country’s national security and sovereignty. Every person has the right to express their opinions through any means but there are certain restrictions laid down under article 19(1)(f) and promoting enmity is one such restriction.

In the case Patricia Mukhim v. State of Meghalaya & Ors. (2021)[4], In this case, the appellant through the means of the social media platform ‘Facebook’ posted writing representing the non-tribal group of Meghalaya, and therefore, he was charged under section 153A of the IPC. The court in this case analyzed section 153A of IPC and held that the main intention behind this section is to prevent any sort of act which would disrupt public harmony and create a threat to the nation’s sovereignty or national security. The appellant didn’t have any motive to create disturbances among communities by publishing the statement and it was just pleading for equality. 

The concept of good faith plays an integral role to define the offense of promoting enmity. Actions that are done in good faith without a wrongful intention are always a defense.

Vinod Dua V. Union of India & Ors. (2020)[5], In this case, the petitioner filed for a writ petition under Article 32 of the constitution. The petitioner was accused of creating a disturbance in society by making malicious statements against the prime minister and the government through his youtube channel for providing false information regarding PPE kits to the public. The Supreme court in this case held that the statement made by the petitioner was just a disagreement against the policies of the government and that won’t cause any disturbance to the peace of the society.

In the case Bijumon v. State of Kerala (2018).[6], In this case, the accused was charged under section 153A for publishing wrong information regarding a communal war between Christians and Muslims. The petition for anticipatory bail from the side of the accused was dismissed by the court as a such publication can result in putting the public peace in danger.

Recent developments

The National Incident-Based Reporting System (NIBRS) by the Uniform crime reporting program, each offense reported where classified into offenses against persons, offenses against property, and offenses against society. Offenses against society are basically victimless offenses that put the safety of society at risk. Some offenses classified as offenses against society in the alphabetic order are animal cruelty, drug violations, gambling offenses such as betting or wagering, offenses under pornography or obscene material, prostitution offenses, weapon law violations, intoxication such as drunk and drive, family offenses, and trespass of real property. 

In a recent judgment, the Allahabad High court denied a bail application of a baba who was accused of raping a minor girl and stated that ‘rape is not just a crime against an individual it is a crime against society.’ Sexual assault against a girl would result in inducing trauma in the mind of any girl belonging to that society, not just the victim. The impact of the offense is something that must be overlooked. If the impact of an offense is on one single person it cannot be a crime against society. If a person is stabbed by his colleague during an argument it can never be a crime against society as the impact of the crime is on the victim only. But when the person has been murdered in a heinous manner, this creates a situation of fear in the minds of the people in the society too. The impact is not just on the victim or the family of the victim. It is collective in nature.

Similarly, a bench of Justices S A Nazeer and V Ramasubramanian made the observation that the practice of corruption by a public servant is an offense against the state or the society, and such cases cannot be dealt with under the suit of specific performances. The offense of corruption is of the nature that people in the society as a whole will start losing their trust in the government and other officials, as well as the rich or privileged section, would get an upper hand in the society. This might lead to the disintegration of the nation and society. Therefore, the impact is huge.

Conclusion

The public or society is considered the core of the country’s democracy, Therefore, any offense which is committed against an individual does not come under the purview of the chapter of IPC but it can disrupt public peace and is categorized as an offense against society. During the pandemic, there was a steady increase in the number of cases against society, especially through social media. A lot of wrong information about the spreading of covid 19 government policies was spread across the nation creating a situation that made society to be panic.

Along with the legislation and the laws brought in to tackle the offenses against society, the judgments passed in various cases are also an essential means to maintain public peace.

---

References:

1. P.S. Kirubakaran v. Commr. of Police., SCC OnLine Mad 508.
2. Amrika Bai v. State of Chhattisgarh., (2019) 4 SCC 620.
3. Bilkis Yakub Rasool v. State of Gujarat., (2020) 13 SCC 733.
4. Patricia Mukhim v. State of Meghalaya & Ors., 2021 SCC OnLine SC 258.
5. Vinod Dua v. Union of India & Ors., 2020 SCC OnLine SC 1209.
6. Bijumon v. State of Kerala., 2019 SCC OnLine Ker 11481.
7. Press Trust of India, Rape is a crime against society, not just an individual: HC, The Times of India (Jan 03, 2023, 11:50 IST), https://timesofindia.indiatimes.com/city/allahabad/rape-a-crime-against-society-not-just-an-individual-hc/articleshow/85875192.cms

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

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

Background and facts

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

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

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

Procedural History

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

Conclusion and Suggestions

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

The case’s conclusion and suggestions include:

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

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

Case Number

Criminal Appeal No. 34 of 2015 (Arising out of Special Leave Petition (Crl.) No. 2961 of 2013), Criminal Appeal No. 35 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3161 of 2013) and Criminal Appeal Nos. 36-37 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3326-3327 of 2013)

Citation

AIR 2015 SC 923 or (2015) 4 SCC 609 

Forum

Supreme Court of India

Bench

H L Dattu CJI., Madan B Lokur, A K Sikri JJ.

Decided on

January 9, 2015

Introduction

The criminal liability of directors is a core concept in corporate criminal law; it helps regulatory authorities and courts control, prosecute and punish crimes of a corporate nature. Given the artificial nature of companies and corporates, it is the employees and executives of the company that act as its agents. Executives are the ones who take the major decisions on behalf of the company. They can easily control the acts and omissions of the company on a short and long-term basis. Given the enormous controlling power that executives possess, it is vital to have laws, regulations and principles governing the actions of these executives. This ensures that they do not violate the law without fear of repercussions and do not use certain concepts of law to evade punishment. 

In the case discussed below, there is a clear explanation of the requirements for holding executives responsible for the acts of their companies, especially in the context of the executives’ names being unlisted in the charge sheet. 

Rule of Law decided upon by the Bench

The rule of law in this case is: 
Section 120-B of the Indian Penal Code, 1860, read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. 

Facts & Procedural History of the case

The central allegation, in this case, was regarding the 2G spectrum case. An additional spectrum that was beyond the usual spectrum that the Telecom Ministry approves. This approval of an additional spectrum was done with a 1% additional revenue share. Multiple cases had been registered, coupled with investigations by authorities. This transaction caused losses to Government Revenue. It was alleged in multiple investigations that this plan resulted from a conspiracy between Mr Ghosh, the then Telecom Minister and certain Cellular Operators.

The case in question is an appeal against an impugned order by a Special Judge, which had issued a summons to the accused in a charge sheet. This order, passed in March 2013, mentioned that the Special Judge was satisfied with the incriminating material recorded so that a summons could be issued against the accused. The Special Judge also stated that the summons was being issued to three executives – Mr Sunil Mittal of Bharti Cellular Ltd., Mr Asim Ghosh of Hutchison Max Telecom Ltd., and Mr Ravi Ruia of Sterling Cellular Ltd. 

The Special Judge went on to specify the doctrine of ‘alter ego’ and applied the same to this case. He held that these executives (the appellants in the case) are the alter ego of their companies. So through vicarious liability, they shall be prosecuted for the crimes of their companies. It is pertinent to note that the Special Judge mentioned that their state of mind is the companies’ state of mind, and any acts of the companies shall be attributed to them. Notably, he had not mentioned the reasons for issuing an order of summons to the three executives. 

The order was sought to be challenged by two of the three executives, to the extent of the order implicating them as the accused. 

Issues raised in the Court of law

A singular issue was raised. However, the Court opined on a variety of topics concerning the issue below: 

Is the impugned order of the Special Judge, which stated that the Appellants were not named in the charge sheet, valid in law?

The decision of the Court on the issues drafted

The Court decided that the order must be set aside, given the ambiguity in the impugned order and the wrongful application of a principle to the issue at hand. They had also mentioned clearly that they were not stating that the executives were free of guilt; they merely quashed the impugned order. It is up to the Special Judge to review the incriminating material again and issue fresh summons to the Appellants. Based on the evidence uncovered, the Special Judge may apply Section 319 of the Indian Penal Code, 1860, to include the Appellants in the proceedings to prosecute them further. 

Analysis of the judgement

The judgement, which Justice A K Sikri wrote, was systematic in its breakdown of the facts and circumstances of the case, along with an analysis of the principle of alter ego and criticism of its application in the present case. 

Initially, the counsel for the Appellants contended that the impugned order was erroneous in two parts. The first three paragraphs of the order are regarding Mr Ghosh and the cellular companies involved. The Special Judge had perused all the documents submitted on record to conclude that these accused persons can be further proceeded against. In paragraph four, the Judge detailed the principle of alter ego and stated that the executives of the three cellular companies were responsible for the acts of their respective companies. The Judge had connected these paragraphs to conclude that the three executives (two of whom are appellants) must be issued a summons. Explaining all this, Senior Advocate Salve (counsel for the Appellant) stated that the Judge’s order was erroneous and did not hold good in law. 

Continuing, he detailed that the doctrine of ‘alter ego’ has been applied in reverse and that the companies were accused first rather than the directors. For the doctrine to apply, the directors must be held guilty, and so they shall be deemed guilty for the acts of the corporate body. Only when the principle is correctly applied can the agency mode of liability also be applied. For the same, he relied on Iridium India Telecom Ltd. v. Motorola Inc.¹, Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd.², and Aneeta Hada v. Godfather Travels and Tours Ltd.³, which are all landmark judgements by the Supreme Court of India. 

Sr. Adv. Salve closed his arguments by pointing out that the CBI had investigated and concluded that there was no information or submitted material to implicate the Appellant. 

Other counsels for the Appellants seconded these arguments and mentioned that some of the appellants were not mentioned in the charge sheet in the first place. 

In terms of the arguments for the respondents, Senior Counsel K K Venugopal refuted the appellants’ submissions by bringing to the forefront the reasoning behind the decision to implicate the appellants. He stated that once companies are charged with mens rea offences, they need to be punished for the same, and the only way to do that is to punish their Directors or Officers. He then pointed out the actions of these executives on behalf of their companies, which had resulted in the 2G Scam. In a nutshell, Sr. Adv. Venugopal has reinforced the human agency doctrine and stated that, despite the omission of appellants’ names in the charge sheet, the Special Judge had powers to make an order such as the one in question. 

In support of his arguments, the cases of M C Mehta v. Union of India (Taj Corridor Scam)⁴, Kishun Singh v. State of Bihar⁵ and Dharam Pal v. State of Haryana⁶ were used.  

In a rejoinder, counsel for the Appellant, Mr Fali Nariman, argued that for vicarious liability to be applied, there is a need for a statutory provision or something to be imputed. Therefore, the Special Judge has wrongfully applied the principle of alter ego. 

After listening to the extensive arguments and contentions of the parties, the Court began examining the order and applying the principle of alter ego. 

The Bench refused to discuss the comments made by the appellants concerning the 2G scam itself, making it clear that the matter is beyond the scope of their appeals. 

Firstly, the impugned order was dissected. At the outset, the Court admitted the trial courts could issue that summons to persons not mentioned as accused in the charge sheet. The only requirement is that there must be sufficient incriminating material on record to empower the Judge to issue a summons. The question, in this case, is not about the incriminating material; instead, it is about the lack of a convincing reason behind the Judge’s decision to issue a summons. The Judge has not clearly stated why he had decided to implicate the three executives as accused and issue summons. He had merely stated that the executives were or are in control of their company’s affairs – this makes them the mind and will of the companies and that this makes them the alter ego of their companies. 

Secondly, the doctrine of alter ego was dealt with. The Court reiterated a landmark Judgement from 2005 – Standard Chartered v. Directorate of Enforcement⁷, and explained that the Bench, in that case, opined that companies could be prosecuted and punished for offences with mandatory imprisonment. Then, the Iridium Infra case was discussed, wherein the same subject was discussed, with the addition of mens rea element. The judgement held that the criminal intent would be imputed to the corporate body. That is to say, the group of people controlling the company must have criminal intent, which will implicate the company to have criminal intent and therefore be punished. 

In the case at hand, the company was first held guilty of criminal intent, following which the executives were held to have criminal intent. The Special Judge had applied the principle in reverse – the company’s criminal intent had been established first, and then its executives were implicated. Thus, applying this principle in this manner makes it erroneous to apply the theory of vicarious liability to the case. 

Thirdly, the Court discussed the circumstances when the company is accused, and its executives can also be prosecuted. It is mainly concerning intent that the decision is made. There must be sufficient evidence for the same. In other cases, the statute in question must refer to the vicarious liability of the company’s executives. Cases discussed included Jethsur Surangbhai v. State of Gujarat.⁸, Sham Sunder v. State of Haryana⁹, Hira Lal Hari Lal Bhagwati v. CBI¹⁰ and Sharon Michael v. State of TN¹¹ among others. 

Based on these discussions, the Court concluded that the Special Judge had used an inaccurate principle of law. It is essential to the case that the Judge mention the reasons for his satisfaction with the incriminating material. However, the Judge failed to do the same. 

After making a brief statement on the powers of the Special Judge to issue summons when the accused is not on the charge sheet, the Court went on to conclude its analysis of the case. They held the impugned order invalid in law as the Special Judge failed to adequately explain the reasons or grounds behind his act of proceeding with the case by issuing a summons. Therefore, the impugned order was quashed and set aside, and the appeal was allowed. However, the Special Judge does have the power to revisit the case, review the documents, and prepare a fresh order that lists the reasons for the satisfaction of incriminating material clearly and in a prima facie manner.    

Conclusion

As seen from the case analysis above, Judges and legal professionals must be careful in their acts and omissions, as an error may lead to the entire proceedings being vitiated. While everything else on the part of the Special Judge’s order was abiding by the law, two points left the entire order of a significant financial scandal quashed. Therefore, it is vital that essential points are included in documents and that the law is followed to a T. 

On the other hand, it is equally essential to ensure that executives of companies do not evade punishment on procedural or theoretical grounds. In order to recover money from white-collar crimes, theories of vicarious liability should be prudently applied in relevant circumstances. 

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Citations

1. Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 (India)
2. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2010) 10 SCC 479 (India)
3. Aneeta Hada v. Godfather Travels and Tours Ltd., (2012) 5 SCC 661 (India)
4. M C Mehta v. Union of India, (2007) 1 SCC 110 (India)
5. Kishun Singh v. State of Bihar, (1993) 2 SCC 16 (India)
6. Dharam Pal v. State of Haryana, (2014) 3 SCC 306 (India)
7. Standard Chartered v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
8. Jethsur Surangbhai v. State of Gujarat, (1984) Supp. SCC 207 (India)
9. Sham Sunder v. State of Haryana, (1989) 4 SCC 630 (India)
10. Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 257 (India)
11. Sharon Michael v. State of TN, (2009) 3 SCC 375 (India)

This case analysis is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.

CASE NUMBER

Civil Misc. Petn. (Civil) No. 13066 of 1989 in Civil Appeal No. 2628 of 1980

EQUIVALENT CITATIONS

1990 AIR 464, 1989 SCR Supl. (2) 561, 1990 SCC (1) 259, JT 1989 (4) 573, 1989 SCALE (2)1426

BENCH

Sabyasachi Mukharji, V. Ramaswami, JJ

DECIDED ON

20^th December 1989

RELEVANT ACT

Contempt of Courts Act, 1971

OVERVIEW

The petitioner, in this petition, has prayed the court for convicting Respondents 1 and 2 for having committed contempt of court through violation of terms and conditions of the undertaking filed in the Civil Appeal No. 2628 of 1980.

ISSUE

Whether the Respondents 1 and 2 are guilty of contempt of court for violating the terms and conditions of the undertaking of the Civil Appeal No. 2628 of 1980?

BRIEF FACTS

Noorali Babul Thanewala, the petitioner has filed a suit against Respondents 1 and 2 of the Civil Appeal No. 2628 of 1980 for contempt of court stating that the terms and conditions of the undertaking have been violated and prayed the Hon’ble Supreme Court to direct to hand over the suit premises possession to the petitioner.

The petitioner, who is the owner and landlord of the Tika No. 3 City Survey House, bearing Nos. 344/345, Jambli Naka, Thane property, where the Ramakrishna Hindu Hotel or Ramakrishna Hotel restaurant is operated, filed Civil Suit No. 213 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name P.A. Dange, V.A. Dange, Haribhan Shivale, and Giri Anna Shetty. The suit was decreed by the Trial Court.

Respondent 1 has alone filed an appeal against the decree before the district court and it was dismissed by confirming the order of eviction. He further approached the High Court of Bombay under writ petition No. 354 of 1975 and the court upheld the lower court’s decree and dismissed the appeal. Finally, on approaching the Supreme Court, the appeal was dismissed on 18^th August 1987. However, the court allowed the appellant to continue the business till 31^st March 1989, stating, “appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file a usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicating within the time aforesaid the decree of execution shall become executable forthwith.”

Raghuram A. Shetty, the second respondent in this petition, filed Civil Suit No. 306 of 1989 in the Thane Civil Court sometime in the early months of 1989 asking for a declaration that the eviction order obtained concerning the subject premises in Civil Suit No. 213 of 1970 cannot be executed against him and for a permanent injunction against the petitioner. He also filed a request for a preliminary ban on carrying out the aforementioned decree. An interim injunction was granted as requested by the Thane Civil Court. This is how the petitioner, in this case, filed this contempt petition against the first respondent, the plaintiff in Civil Suit No. 306 of 1989, as well as the original tenant, K.M.M. Shetty.

The second respondent has filed a reply statement in which he contended that on November 29, 1986, P.A. Dange acquired the hotel business that was being operated by the tenant, K.M.M. Shetty, on the ground floor of the suit premises under the name and style of Ramkrishna Hindu Hotel, and that, according to an agreement dated January 2, 1967, the said P.A. Dange, with the tenant’s consent, transferred the said business and the exclusive possession of the later, on January 8, 1972, the tenant and the second respondent signed a new agreement under which the second respondent agreed to pay the tenant a royalty. To the petitioner’s knowledge, the second respondent was still occupying the property and operating a business, but he was not named as a party in the eviction suit or the subsequent proceeding, so he was not subject to the eviction decree. The landlord-petitioner has submitted a reply to this response.

This Court stated “the order granting the injunction against the petitioner from executing the eviction decree against the second respondent shall not be effective and that the petitioner is entitled to execute the decree for eviction against all people who are in possession of the property after discussing in detail the various developments of the case brought about by the first respondent as well as by the second respondent herein. The court found the first respondent guilty of contempt for wilfully disobeying the undertaking he made in front of the court.”

DECISION

The question that had been raised in front of the Hon’ble Supreme Court was the punishment to be given to the first respondent and the relief to the petitioner. The learned counsel for the first respondent had stated on behalf of his client stated that his client was an 84-year-old man, and was willing to hand over vacant possession to the petitioner and that he was unable to comply with the undertaking bona fide given the facts and circumstances.

The court stated, “When an order is given on the basis of an undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical.”

The court further stated, “To enforce an undertaking, it is treated as an order and if the terms and conditions of the undertaking are not complied by the party, there would be consequences upon them for the disobedience of an order for an injunction. It is established law that misconduct amounting to contempt includes violating an order of a court or an undertaking made by a party to a civil case in whose favour the court sanctions a certain course of action. In these situations, the remedy could be a warning to the contemnor to stop, a jail sentence, a fine, or any combination of those. We believe that a simple sentence of imprisonment or a fine will not serve the interests of justice in this case given the facts and circumstances and the fact that the undertaking was broken.”

The court decided that the first respondent is guilty of contempt of court due to the wilful disobedience of the undertaking. Accordingly, he was convicted and sentenced to pay a fine of Rs.500 within four weeks, failing which he would suffer simple imprisonment for one month, and also directed to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. The court also further directed the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men, and if necessary, with police help and hand over the vacant possession of the premises to the petitioner. However, the court discharged the rule issued against the second respondent.

CONCLUSION

The courts are considered to be the administrators of justice in the nation. The order or decree passed by them is required to be followed. Apart from the Contempt of Courts Act 1971, the Constitution prioritizes the process of contempt of court to maintain justice and equality in society. Under the Indian Constitution, the Supreme Court of India, i.e., the Court of Record can hold any party liable for contempt of court, if anything wrong has been committed against the decision of the courts under Article 129.

Also, Article 142 (a) states that the Supreme Court has the full authority to issue an order securing anyone’s attendance, the production of any documents, or the ability to penalize anybody for disobeying any law passed by the Parliament regarding the requirements specified in clause 1 of this Article. Since the Supreme Court has the authority to impose penalties for contempt of court, this does not imply that it can take any action that violates an individual’s right to personal liberty. We are aware that because the Indian Constitution is the custodian of all our rights, it must protect them and cannot infringe on them directly.

The Hon’ble Supreme Court made it clear that any person disobeying the decree of the court would be tried for contempt. The party’s non-compliance with the decree would disrupt the process of justice. The court has also made it clear that any undertaking given by the parties to the court will be considered an order and not adhering to the terms and conditions would also be considered contempt of court.

This article is written by K. Mihira Chakravarthy, 2^nd year, B.A. L.L.B student from Damodaram Sanjivayya National Law University.

CASE NUMBER

Criminal Appeal No. 169 of 1957

EQUIVALENT CITATION

1962 AIR 955; 1962 SCR Supl. (2) 769

BENCH

Bhuvaneshwar Prasad Sinha, C.J., A.K. Sarkar, J.R. Madholkar, N. Rajagopala Ayyangar and S.K. Das, J

DECIDED ON

20^th January 1962

RELEVANT ACTS

The Indian Penal Code, 1860; The Indian Constitution of India, 1950

BRIEF FACTS

On 26 May 1953, the appellant, Kedarnath Singh, a member of the Forward Communist Party, delivered a speech in the village Barauni. He used the word ‘dogs’ for the CID officers commenting that they were loitering around and used the term Goondas for the members of the Indian Congress Party. He stated in his speech that the Congress Party was treating its people just like the Britishers. It was further stated by him that the money is being given by the Zamindars and capitalists to the members of the Congress Party and they’re being benefitted while the Kisans and Mazdoors are still suffering in society. He said that the Forward Communist Party believes in the revolution, which will arrive, engulf the capitalists, zamindars, and Congress leaders of India who have made it their business to plunder the nation, and on their ashes, a government of the country’s poor and oppressed citizens will be erected. He also targeted Vinobha Bhave’s land redistribution initiatives.

After the substantial oral evidence, the Trial Magistrate convicted Kedarnath Singh under Section 124A (sedition) and Section 505 (public mischief), of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a year. The convict approached the High Court of Patna and the issue was heard by late Mr. Justice Naqui Imam upheld the lower court’s decision and dismissed the appeal stating that the speech given by the appellant was certainly seditious. The Convict further moved to the Supreme Court of India through the special leave to appeal. The constitutional validity of the ss. 124A and 505 of IPC were questioned before the Division Bench on 5 May 1959, stating that those sections were inconsistent with Article 19 (1) (a) of the Constitution.

After reviewing the case’s judicial history, the Apex court was confronted by two conflicting rulings from the Federal Court in Niharendu Dutt Majumdar v. The King and The Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao. When referring to both decisions, the Supreme Court expressed its belief that if the Federal Court’s decision and interpretation were upheld, the challenged passages would fall under the purview of legal limitations on the freedom of expression’s fundamental rights. However, if the Privy Council’s ruling and interpretations are upheld, the challenged parts could be declared unconstitutional under Article 19(1)(a) read in conjunction with Article 19 (2) of the Constitution.  By doing this, the disputed parts’ scope was constrained and their constitutional validity was confirmed in each of them. As a result, the appeal was denied, and the High Court was given the appeal of another connected matter.

ISSUES

1. Whether ss. 124A and 505 of the Indian Penal Code are ultra vires of Article 19(1)(a) read with Article 19(2) of the Indian Constitution.
2. Whether the intention of the accused is to create disorder, disaffection, or incitement to violence in order to be guilty of the offence of sedition law.

DECISION

The Supreme Court stated that Article 19 (1) (a) is a fundamental right guaranteeing the freedom of free speech and expression with reasonable restrictions under the purview of clause (2) which consists – (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. The constitutionality of the ss. 124A and 505 of the Indian Penal Code are consistent with the requirements of clause 2 of Article 19 to punish the wrongdoer and protect the state and public order.

Section 124A states as follows, “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 estab­lished by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The hon’ble court further stated “the Government is established by law and it is the symbol of the state. Any seditious acts or spreading hatred or producing disaffection against the Government would be within the penal statute as the feeling of disloyalty to the Government established by the law or enmity to it imports the idea of tendency to public disorder by the use of the actual violence or incitement to violence.”

The Court stated that it has to invalidate any law that unreasonably restricts the freedom of speech and expression that is at issue in this case because it is the custodian and guarantor of the citizens’ fundamental rights. However, the freedom must be protected from once more being used as a justification for denigrating and criticizing the legalized government in ways that incite violence or have the potential to cause a riot. A citizen is free to criticize or comment on the government or its policies as he sees fit, as long as he does not incite others to act violently against the legally established government or with the intent of causing a commotion. Therefore, it is the Court’s responsibility to draw a distinct line separating the scope of a citizen’s fundamental right guaranteed by Article 19(1)(a) of the Constitution from the legislature’s authority to impose reasonable restrictions on that right in the interest of, among other things, the security of the State and public order.

The court stated that clause (2) of Article 19 saves the Section from the vice of unconstitutionality. It is obvious that each of the elements that make up the s. 505 offense has anything to do with or has a direct impact on public order or state security. As a result, these clauses would not go beyond what could be considered legitimate limitations on the right to freedom of speech and expression. Therefore, the Supreme Court stated that the Criminal Appeal 169 of 1957 has to be dismissed and the Criminal Appeals 124-126 of 1958 would be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by them.

CONCLUSION

In a democratic nation like India, where the freedom of speech and expression is given a lot of importance, Section 124A of the Indian Penal Code seems like a hindrance or an obstacle that does not completely let the citizens of the nation exercise their fundamental right. Through the case of  Kedarnath Singh v. State of Bihar, the supreme court has established a clear-cut reason why sedition shouldn’t be seen as an obstacle. In the aforementioned case, where Kedarnath Singh was commenting on the ruling government in a very bad way which would have paved the way to create chaos in the society, the court stated that citizens have a right to pass comments and their views upon the government and its working but it shall not disturb the public order or incitement of violence in the society.

Thus, the outcome of the judgment made it clear that Sedition i.e., 124A is intra vires and it is a reasonable restriction imposed by law. Given the recent circumstances, there are a lot of cases lodged under Section 124A, sedition. The importance given to the maintenance of law and order in the country should also be given to the protection of the freedom of speech and expression of the citizens. There are high chances that the persons in power can use these sections to infringe the fundamental rights of the individuals.

This article is written by K. Mihira Chakravarthy, 2^nd year B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).