Case BriefsHigh Courts

Punjab and Haryana High Court: A writ petition was filed seeking the relief of protection of life and liberty at the hands of family members after the petitioners got married against their will. Considering the competency of the petitioners to enter into a valid contract of marriage and addressing the apprehension raised by them, Jasjit Singh Bedi, J, directed the Senior Superintendent of Police to decide the representation of the petitioners regarding danger to their life and liberty.

In the present case, both the petitioners were Muslims. They fell in love and decided to get married. The boy was 21 years of age while the girl was of 16 years as per their Aadhaar Cards. Both the petitioners solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.

The counsel for the petitioners while placing reliance on Kammu v. State of Haryana[1], Yunus Khan v. State of Haryana[2]  and Mohd Samim v State of Haryana[3]submitted that under Muslim law, puberty and majority are one and there is a presumption of majority at the age of 15 years and a Muslim boy or a Muslim girl who has attained puberty is at liberty to marry one he or she likes and the guardian has no right to interfere. The petitioners, however, limited their prayer to the issuance of direction for deciding the representation made to the superintendent of police for protection of their life and liberty which was not acted upon by him earlier. The counsel for respondents 1 to 4 accepted the notice of motion.

Placing reliance on the case of Yunus Khan (supra) and Article195 from the book ‘principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ as was reproduced in the said case, the Court noted that the marriage of a Muslim girl is governed by the personal law of Muslims, which proposition has been made clear in the above mentioned various judgments. The Court addressed the issue of providing protection to the petitioners as envisaged under Article 21 and held that-

“…merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.” and disposed off  the petition directing the senior superintendent of the police to decide the representation made by the petitioners.

[Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485, decided on 13.06.2022]


Appearnces:

For Petitioner: Advocate Sanjeev Kumar

For State: AAG Bhupender Beniwal


[1] 2010(4) RCR(Civil) 716]

[2] 2014(3) RCR(Criminal) 518]

[3] 2019(1) 1 RCR (Criminal) 685

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: On Friday, the SCOTUS decisively overruled not only the landmark ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted the American women a constitutional right to abortion, but also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11, which upheld the Roe ruling. It was held that the Constitution of United States does not confer any right vis-à-vis abortions. With this decision, the authority to regulate abortion was returned to the people and their elected representatives.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision as catastrophic. In a passionate and scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Lamenting upon the rationale behind the overruling, the Judges stated that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”

The Judges made some crucial observations highlighting their apprehensions and dismay over the majority decision, which are as follows:

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey understood the difficulty and divisive­ness of the abortion issue and the Bench deciding those cases was aware that Americans have profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded the afore-stated balance. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”.

“The Mississippi law at issue here bars abortions after the 15th week of pregnancy. But under the majority’s ruling, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life”.

  • The dissenting Judges noted that the majority decision would sound a death knell for women who are not financially strong. It was also pointed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for the majority decision is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering.

Either the major­ity does not really believe in its own reasoning. Or if it does, then all rights that have no history stretching back to the mid­ 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

  • “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it”. Questioning the majority’s use of historical approach in the decision, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship… The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning.

“The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.

  • The dissenting Judges observed that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”.
  • The Judges questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases, when in the same vein he urged the Court to reconsider decisions like Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6.

“He says, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrule these demonstrably erroneous decisions.”  So at least one Justice is planning to use the ticket of today’s decision again and again and again”.

  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. They noted that by overruling Roe and Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority has abandoned stare decisis, a principle central to the rule of law because “Stare decisis” means to stand by things decided.”

The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

  • Regarding majority’s view about unworkability of ‘undue burden’ standard set in Casey, the dissenting Judges opined that general standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, this Court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances.
  • In the dissenting Judges highlighted that this decision will invite a host of questions about interstate conflicts like –whether a State can bar a woman from travelling to another State to get an abortion etc.

“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “inter- jurisdictional abortion wars.”

The dissenting Judges remarked that, Roe and Casey continue to reflect, the broad trends in American society. It is true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains that Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Therefore, the disruption of overturning Roe and Casey will be profound as well. Pointing out that the Mississippi’s Gestational Age Act, does not have any exception for rape or incest, even for underage women, thus the loss of Roe and Casey would be disastrous for women who will have undergo pregnancies resulting from rape or incest.

Finally the dissenting Judges observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. The decision breached a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it placed in jeopardy other rights, from contraception to same-sex intimacy and marriage; and finally, undermining the Court’s legitimacy.

With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent”.

[Dobbs v. Jackson Women’s Health Organisation, No. 19–1392, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a far-reaching decision concerning an American woman’s right to abortion, the Court held that the Constitution of United States does not confer any right vis-à-vis abortions. This judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib­iting abortion. Roe and Casey arrogated that authority”.

In a separate concurring opinion John Roberts, CJ., agreed with the majority on the point that the rule of viability as propounded in Roe and Casey, should be discarded as the SCOTUS seriously erred in adopting via­bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense”. He however, also stated that, “None of this requires the dramatic step of altogether eliminating the abortion right first recognized in Roe”.

Facts and Legal Trajectory of the Case

The re-consideration of Roe v. Wade came into the picture when Jackson Women’s Health Organisation [respondents] challenged Mississippi’s Gestational Age Act. The legislation provided that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn hu­man being has been determined to be greater than fifteen (15) weeks.”

The respondents contended before the Federal District Court that Mississippi’s law violated SCOTUS’ prec­edents establishing a constitutional right to abortion, particularly Roe and Casey. The District Court granted summary judg­ment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates SCOTUS decisions forbidding States to ban abortion pre-viabil­ity. The Fifth Circuit affirmed the decision.

The petitioners finally came before the Supreme Court defending the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.

Majority Observations

The majority opinion was delivered by Justice Samuel Alito in which Chief Justice John Roberts, Clarence Thomas, Brett Kavanaugh, (concurring), Neil Gorsuch and Amy Coney Barrett, JJ., also joined. The majority considered Roe and Casey on following points-

  • The majority deliberated whether the Constitution, if properly un­derstood, confers a right to obtain an abortion. It was observed that Fourteenth Amendment’s refer­ence to “liberty” protects a particular right. However, the Constitution makes no express reference to a right to obtain an abortion, but several con­stitutional provisions have been offered as potential homes for an im­plicit constitutional right. The Court pointed out that “The Bench deciding Casey grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend­ment’s Due Process Clause, but that theory is squarely foreclosed by the Court’s precedents, which es­tablish that a State’s regulation of abortion is not a sex-based classifi­cation and is thus not subject to the heightened scrutiny that applies to such classifications”.
  • The majority based its next observations on the History and Traditions of the Nation”. It was pointed out that the right to abortion is not deeply rooted in the Nation’s history and tradi­tion and the Due Process Clause pro­tects two categories of substantive rights – rights guaranteed by the first eight Amendments to the Constitution and rights deemed fundamental but are not mentioned anywhere in the Consti­tution. “Historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy”. Citing this reason the majority expressed its reluctance recognize rights that are not men­tioned in the Constitution. “Guided by the history and tradition that map the essential compo­nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor­tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”.
  • Furthermore the Court stated that Roe’s analysis of historical basis of right to abortion was faulty. It was pointed out that American law followed the common law until a flurry of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor­tion a crime at any stage of pregnancy. Thus Roe either ignored or misstated this part of history. The Court observed that instead of seriously pursuing the argument that the abortion right itself has deep roots in history, the supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right- right to privacy. “But the people of the various States may evaluate those inter­ests differently. The Nation’s historical understanding of ordered lib­erty does not prevent the people’s elected representatives from decid­ing how abortion should be regulated”.
  • Finally the majority applied the principles of stare decicis to analyse whether a right to obtain an abor­tion is part of a broader entrenched right that is supported by other precedents. The Court observed that while deciding Roe, none of the decisions cited involved the critical moral question posed by abortion. thus, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. It was pointed out that doctrine of precedents “restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command”.
  • Terming Roe as egregiously wrong and in collision course with the Constitution from the day it was decided, the Court stated that Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. It was further stated that the scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. Another glaring defi­ciency was Roe’s failure to justify the critical distinction it drew be­tween pre- and post-viability abortions.
  • The argument that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause was also rejected by the Court stating that. This decision concerns the constitutional right to abortion only. Nothing in this opinion should cast doubt on precedents that do not concern abortion.

Concurring Opinion of John Roberts, CJ.,

Taking a middle ground approach, Roberts, CJ., stated that overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favour. He also pointed out that SCOTUSabortion precedents describe the right as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further not all the way to viability.  He also stated that. “I am not sure, that a ban on terminat­ing a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fif­teen weeks. I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no”.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case”.

Concurring Opinions of Clarence Thomas and Brett Kavanaugh JJ.,

  • Justice Clarence Thomas’ concurring opinion emphasised on more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. He stated that “substantive due process” is an oxymoron that “lacks any basis in the Constitution.” He stated that the Court should reconsider all of SCOTUS’ substantive due process precedents, includ­ing Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6“Because any sub­stantive due process decision is “demonstrably erroneous, we have a duty to “correct the error” established in those precedents. After overruling these demonstra­bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr­iad rights that our substantive due process cases have gen­erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment”.
  • Justice Brett Kavanugh stated that the Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. The Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer­ican history and tradition.The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre­sentatives to resolve through the democratic process in the States or Congress—like the numerous other difficult ques­tions of American social and economic policy that the Con­stitution does not address”.

The Dissent

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision to be catastrophic. In a scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Some of their salient observations are as follows-

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey well understood the difficulty and divisive­ness of the abortion issue and the Court was aware that Americans hold profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”. The dissenting Judges pointed out that the majority decision would sound a death knell for women who are not financially strong. It was observed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering. “Either the major­ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid­19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
  • Questioning the majority’s historical approach, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges also pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”. The Judges also questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases when in the same vein he urged the Court to reconsider decisions like
  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

Finally the dissenting Judges simply observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.

Decision

With their afore-stated observations the majority concluded that Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in­terest in “protecting the life of the unborn”. These legitimate interests provide a rational basis for the Gestational Age Act.

[Dobbs v. Jackson Women’s Health Organisation, No. 19–1392, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Op EdsOP. ED.

Introduction

After the independence of India from the British colonial rule, it was observed that Parliament by itself cannot legislate on each and every facet of certain matters nor can it directly entrust the power to the executive to enforce the same. To fill in these gaps delegation of authority and power became a necessity.

The six decades after independence have played a major role in the rapid expansion and smooth functioning of administrative activities.

The executive is given authority by the statute to use this discretion and act accordingly. An extensive power is given to the executive to choose a path of operation from numerous possible courses of action and select the best depending upon the situation. Power of discretion ensures that the administrative authority has sufficient independence and liberty in carrying out its activities.

However, to regulate the power and to ensure that this discretion is not misused, the law has established scrutiny to make certain that this discretionary power is exercised according to the guidelines of the statute.

Abuse of discretion

Power of discretion given to the administrative authority ensures that they get adequate independence and liberty in carrying out their activities. However, this discretion is often misused. Abuse of power is one of the classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, besides competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers were granted.[1]

The abuse of discretion is done in the following manner. The administrative authority may not duly exercise the power and authority entrusted to it (sub-delegation, acting mechanically, imposing fetters on discretion, acting under dictation, non-application of mind, power coupled with duty) or they may exercise the power and authority under the coercion of another body, which may have improper motives (like abuse of power, mala fides, improper purpose, irrelevant considerations, leaving out relevant consideration, colourable exercise of power, judicial discretion, unreasonableness). This leads to biases and incorrect usage  of power delegated to such administrative authority.

The power of discretion given to the administrative authorities is a complex process. A Government may not be able to function properly without the exercise of some discretion by the officials. It is impossible to lay down the rules for every plausible aspect. This has led to conflicts as to whether there should be absolute discretion of administrative authorities or whether it should be subject to reasonable control. Giving discretionary power to the administrative authority is not wrong however, people often misuse it.

Some of the abuses of administrative discretion are as follows:

Mala fides

Mala fide is a broad term and means something done with bad intent, corrupt motive, or not in good faith. An administrative action must  be without mala fides. The burden of proof lies on the person who alleges mala fides. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact includes personal ill will, corrupt motive, spite, vengeance, and personal benefit to the authority itself.

One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this case, the appellant was a civil surgeon employed under the State Government. He was initially accorded leave in advance of his retirement but in due course of time it was cancelled, also he was given a suspension order and disciplinary action was initiated against him on the charge that he had agreed to receive a bribe of Rs 16 from some patients before going on leave. It was alleged by the appellant that the disciplinary proceedings against him were started in the wake of the personal vendetta of Pratap Singh who was then the Chief Minister of Punjab as the doctor had declined to surrender to the illicit demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held that such exercise of power is mala fide, and quashed the order.

In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman dealing in the sale of wholesale kerosene oil. He was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 on the ground that he was operating without a licence and dealing in kerosene illegally. The petitioner challenged the validity of the order of detention by and large on the pretext that it is mala fide. It has been passed as a consequence of malevolent and erroneous reports, devised at the order of the Deputy Superintendent of Police (DSP). The alleged reason of the Deputy Superintendent in securing the preparation of these incorrect reports was to get rid of the petitioner from the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that his family members  could obtain the dealership. The Deputy Superintendent did not even file a counter-affidavit to controvert the allegations made against him by the appellant. Due to these considerations, the Supreme Court declared the order of detention to be clearly and plainly mala fide.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh took on a proposal of the State Government to nationalise certain bus routes. It was purported that the Chief Minister had acted with mala fide intentions while giving the instructions. The allegation against him was that the specific route way had been chosen for the reason that he sought to take revenge from the private operators on those routes because they were his political opponents. Considering the facts of the case, the Supreme Court held that the Chief Minister had mala fide intention.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Improper purpose

A statute confers discretionary powers upon an administrative authority for one purpose and if it is used for some purpose other than the one that was decided, it will not be regarded as a valid exercise of the powers and the same may be rescinded by declaring it as ultra vires. Hence, we can see that the power of discretion is not unlimited and is constricted to the objective for which the law was enacted.

Therefore, where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by the Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where the Municipal Corporation refused to approve the construction of buildings with a view to pressurise the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene any rule.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.[5]

However, with time as the authorities were accorded discretion to increase the scope of their functioning, the cases of exercise of this discretion for improper purposes started increasing tremendously. In order to curb this problem and restrict this unconstrained power, the  courts can check the primal target of the statute in endowing the discretionary power. The rationale behind an administrative action should be in conformation with the legal objective.

In S.R. Venkataraman v. Union of India[6], the appellant, was a Central Government officer. She was compulsorily retired from service in “public interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50 years. Her contention was that there was non-application of mind by the Government as they did not take into consideration her service record and that her retirement was based on extraneous circumstances, outside the extent of the Act. This was validated from the fact that there was not a thing in her service record to rationalise premature retirement. The Supreme Court revoked the order of the Government and held that in a case where discretionary power is exercised for an unauthorised purpose, the principles of good faith or bad faith stand irrelevant. An administrative order formulated on the basis of non-existent reasons or facts should be deemed to be contaminated with an abuse of power.

Irrelevant or relevant considerations

Discretionary power allows an authority to choose from alternative actions and select the most appropriate one. However, this discretionary power should always be exercised on relevant grounds and not on extraneous grounds, it should not be influenced by considerations that cannot be lawfully taken into account, in other words, all discretionary work must be in conformance to the considerations mentioned in the parent statute. If no such considerations are laid down in the statute, then power is to be exercised on the basis of the considerations relevant to the purpose for which the statute was conferred. If the authority uses this power for irrelevant cases, then the administrative action would be considered ultra vires and will be quashed.

To determine whether the considerations are relevant or irrelevant, one has to infer from the general terms of the statute.

In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board exercising its power under Section 237 of the Companies Act, 1956[8] can order an investigation into the matters of the company if such affairs are carried out with a motive to defraud creditors or if the persons involved in the management are guilty of fraud.

Exercising this power an investigation was ordered into the affairs of Barium Chemicals Ltd. for the reason that the company was suffering continuous losses as a consequence of faulty planning and many eminent persons resigning from the Board of Directors. This order was challenged. The court quashed the order of the Board stating that these grounds were immaterial and irrelevant to the objective enshrined in the law. It did not comply with the direction of Section 236[9].

In Rohtas Industries v. S.D. Agarwal[10],  an investigation was ordered into the affairs of a firm on the grounds of misconduct by one of the leading directors. There were several complaints against him. Also shares of another company held by it, were being sold at an inadequate consideration. About the former, the Court was of the view that it was not an admissible situation. About the other ground, the Court found no evidence of the shares having been sold for insufficient remuneration. The order was revoked as these grounds were held to be insubstantial in order to solicit an inquiry under Section 237 of the Companies Act, 1956.

Leaving out relevant considerations

While exercising its discretionary power if an administrative authority turns a blind eye to relevant considerations, its acts will be considered null and void. An authority should always take heed of the considerations which  law lays down expressly or impliedly. In case the law does not lay down any considerations but grants power in a general way, the court might imply some appropriate considerations for the exercise of the power and rescind a directive since the officials concerned did not take these into account.

In Ranjit Singh v. Union of India[11], the allotted quota for production of guns by a licensed manufacturer was lowered from 30 to 10 guns per month. This order was challenged on the ground that the decree was not based on relevant considerations but on immaterial consideration. It was held by the Court that the order was out of place as the Government had not taken into account material considerations like the quality of guns produced, economic viability of the unit, capacity of the factory, etc. in making the order. It was observed by the Court that any curtailment of quota should be based on reason and relevance. If all the material factors are not considered, the decision is corrupt.

Colourable exercise of power

The courts often use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise signify that under the “appearance” of power accorded for one objective, the authority is trying to achieve something else which it is not permitted to do under the statute. Such acts  of the  authority shall be null and unlawful.

In Somawanti v. State of Punjab,[12]  the Supreme Court in relation to acquisition of land under the Land Acquisition Act[13] expressed as follows:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.

The above extract would show that the term “colourable exercise of power” is used in the sense that the exercise of power is unlawful, but it has been given the illusion of legitimacy.

Unreasonableness

                The law requires the authority to act fairly and rationally. The term “unreasonableness” does not provide a separate ground of judicial control  other than the grounds already mentioned. The term also comprises those cases where either the authority has acted in accordance with law but in the wrong manner or in accordance with law and in the right manner but on the wrong grounds. The courts usually do not exercise such extensive power to interfere in the exercise of administrative discretion. However, the courts do interfere with the order where it has been passed  irrationally.

Proportionality

To keep a lid on the exercise of administrative discretion judicial control has been formulated. This assures that unrestricted power is not given to the authorities to allow erratic decision-making. The rule of proportionality is one such major rule which make sure that there is a connection between the goal that must be achieved, and the method undertaken to enable so.

This tool was applied in Union of India v. Ranjit Thakur[14]. In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior officer by refusing to eat food offered to him. As a result of this court-martial proceedings were instituted and sentence of rigorous imprisonment of one year was levied on him. Also, he was expelled from service, with the additional disqualification that he would be incompetent for future employment. The said direction was called into question on the ground that the penalty was flagrantly inordinate. The Supreme Court implemented the doctrine of proportionality while revoking the punishment of expulsion from employment and sentence of incarceration awarded by the court martial under the Army Act[15].

Conclusion

With more and more discretion being given to the administrative authorities to take action without intervention from other bodies has led to increased independence of the authorities to choose between the different approaches and select the best alternative. However, to keep a check on this wide freedom, the courts in India have developed various controls over discretionary action which ensures that this power is exercised within the limits prescribed by law, is just and fair, and is based on pertinent grounds and good faith.

From the above cases we see that the abuse of administrative discretion takes place in a number of forms, for example, acting on mala fide basis, disregarding relevant considerations and pursuing irrelevant ones, misapprehending the power granted by the statute, etc.

The authorities must have an established extent of liberty to carry out its activities because excessive liberty accorded to the administration will always result in violation of the fundamental rights of an individual. The only method to guarantee individual freedom is judicial review of public administration. Hence, it is a matter of controversy as to what degree the public administration is susceptible to judicial review while performing the tasks assigned.

The work of public administration is to ensure proper execution of the administrative policy whereas the function of the  Administrative Tribunals is to assess whether this execution is exercised correctly under the provisions of law. The separation of these functions limits the scope of judicial review. The scope is limited to the basis of legality and the court’s function to directly rectify the administrative decision is relinquished. This separation of functions does not allow the court to act as a replacement to the administrative bodies.

For the proper exercise of discretion of power,  constructive framework was developed by the courts. The judicial control process of administrative discretion can be done by either establishing control at the stage of delegation of discretion or by establishing control at the stage when the discretion is exercised.

Freedom granted to the administrative authorities to make a decision on certain matters by using their best judgment opposed with the extensive judicial control represents the equilibrium maintained in Indian jurisprudence. On one side of this equilibrium lies unconstrained power and on the other,  judicial supremacy. Mid way is possibly the finest place to be.


*Second year student, BBA LLB, Vivekananda Institute of Professional Studies, New Delhi. Author can be reached at <barkhatandon09@gmail.com.

[1]Jerzy Parchomiuk, Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: from “Administrative Morality” to the Principle of Proportionality, Vol. 3, MUNI Journals, 2018.

[2]AIR 1964 SC 72.

[3]1966 SCC OnLine SC 2.

AIR 1964 SC 962.

[5]Laksheyender Kumar, Abuse of Administrative Discretion, legalservicesindia.com, 21-6-2021, <http://www.legalservicesindia.com/article/756/Abuse-of-Administrative-Discretion.html>.

[6](1979) 2SCC 491.

[7]AIR 1967 SC 295.

[8]Companies Act, 1956, S. 237.

[9]Companies Act, 1956, S. 236.

[10](1969) 1 SCC 325.

[11](1980) 4 SCC 311.

[12]AIR 1963 SC 151, para 36.

[13]Land Acquisition Act, 1894.

[14] (1987) 4 SCC 611

[15]Army Act, 1950.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. A recent judgment by the Division bench of Sanjay Karol CJ and S.Kumar J. observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Issues in question

1. Whether the failure of the authorities to finalize the setting up of Petrol Pumps leads to a violation of the rights of travelers?

2. Within the expanding area of Right to Life, does an entitlement of the right to sanitation arises, more so on the Highway, be it setting up of Petrol Pumps and providing facilities therein or otherwise?

3. What is the nature of obligations imposed upon the State to ensure the availability and upkeep of sanitation facilities on the Highways?

Analysis

Sanitation facilities

The bench was of the view that the State is under the obligation to provide basic amenities to the citizens on the Highways while ensuring that their basic right to sanitation or basic amenities is not defeated. The bench stated that

“… the right to sanitation comes within the expansive scope of Article 21. The nature of obligation imposed upon the State is not only that of being a welfare state but also the realization of fundamental rights for every citizen, even the rights enshrined within Article 21, which forms the nerve center of our constitutional consciousness.”

Further, the bench noted that the lack of sanitation facilities on the highways has a significant impact on our environment and it encourages people to indulge in the unsafe practice of open defecation/ urination which ultimately causes serious health and hygiene issues.

The bench noted that, in order to provide sanitation access to everyone by achieving multiple targets of United Nation’s Sustainable Development Goals (SDG), the bench laid emphasis on the judgment given by the Supreme Court in Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243 wherein the court recognized the important position of sustainable development framework in environmental jurisprudence.

Setting up of Petrol Pums

The bench observed that Roadways and Highways form an essential part of the national economy as they are the connectors between different parts of the country. Easy travel with all necessities being served is a ‘right’. Setting up petrol pumps at regular intervals helps in achieving both economic and social benefits.

“The lapse of time from the initiation of the process to the setting up of these units, take away the ideals of a welfare State where the prime objective of the administration is to serve the people in a way that all their needs are met, also giving them opportunities to grow.”

Therefore, the court concluded that it is essential to note the caution in setting up petrol pumps as petrol is a product of a conventional source of energy i.e. crude oil. Hence, the distribution of the said commodity should be done in such a way that the paramount consideration of environmental suitability and resource conservation is given due consideration.

Directions issued

In the light of the above analysis, the Bench issued necessary directions to the State, NHAI and OMCs-

• The Chief Secretary, Government of Bihar, to convene a meeting of all stakeholders to examine the best and most efficient way to realize the multifarious benefits arising from the establishment of petrol pumps with equal importance being placed upon economic, social and environmental aspects.

• The Development Commissioner, Government of Bihar, who is already seized of the matter shall take expedient steps in furtherance of the action(s) taken thus far.

• The State, NHAI and the OMCs consider constituting public toilets and public conveniences at places easily identifiable and accessible by the public at large, and in this regard, signboards of “Public Toilets” or “Private Toilets” be displayed at the retail outlets.

• The amenities constructed should be done so, keeping in mind accessibility for persons with disabilities. The State has a responsibility to provide them equitable access to basic amenities while undertaking road travel, in light of the Constitution of India and the various international Human Rights obligations.

• All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.

• Authorities may also consider making it necessary/mandatory for all the Dhabas/ Restaurants on the highways to make available public toilets and drinking water facilities for the use of the general public. While granting permission to such establishments, authorities should consider incorporating specific conditions regarding the provision of toilets and restrooms. Also, maintain the same hygiene, failing which their registration/permit is cancelled.

• The State Authorities and corresponding Central Authorities will take expedient steps to check the practice of the black-marketing or open unauthorized sale of petrol/diesel.

• The authorities may consider the development of a mechanism to:-

(a) institute a randomized checking system to ensure facilities and resources’ quality and proper availability.

(b) in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other related issues.

(c) Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.

[National Highway Projects v. State of Bihar, 2022 SCC OnLine Pat 1048, decided on 10-05-2022]


Advocates who appeared in this case :

Mr. P.K. Shahi, Senior Advocate, Amicus Curaie, for the petitioner;

Mr. Anjani Kumar, AAG-4, Mr. Alok Kumar Rahi, AC to AAG-4, for the State of Bihar;

Mr. Kumar Priya Ranjan, Advocate, Mr. Pallav, Advocates, for the Union of India;

Dr. K.N. Singh, ASG, Dr. Maurya Vijay Chandra, Advocate, Mr. Devansh, J.C. to A.S.G., Mr. Sriram Krishna, JC to A.S.G., Mr. Amarjeet, Advocate., Mr. Gaurav Govinda, Advocate., Mr. Gaurav Kumar, Advocate., Ms. Anjali Kumari, Advocates, for the NHAI;

Mr. Sarat Kumar Mishra, Advocate, Mr. Ankit Katriar, Advocate, for the IOCL;

Mr. Siddharth Prasad, Advocate, Mr. Om Prakash Kumar, Advocate, for the BPCL;

Mr. Rajeev Prakash, Advocate, for the HPCL.

Case BriefsSupreme Court

Supreme Court: In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon[1] & Motil Ram[2].”

By an order dated 28-09-2020 the Supreme Court had directed to release the petitioner on interim bail after noting that the petitioner had been in custody since 12-05-2011 and had completed more than 9 years of actual imprisonment. The Court had order that the petitioner be produced before the Trial Court within three days and the Trial Court shall release him on interim bail on such terms and conditions as the Trial Court may deem appropriate.

Despite the aforestated order the petitioner was not bailed out and was kept in custody, on being apprised of this fact the Court had sought explanation from the Police and Jail officials concerned. The Superintendent, Central Prison, revealed that the order dated 28-09-2020 was received in the Prison on 06-10-2020. However, due to Covid-19 Pandemic restrictions, the movement of the prisoner was not immediately possible and the application reached before the Court on 29-10-2022 for consideration of bail when the Trial Court passed the following order: “How the petition is maintainable after expiry of time as per orders of Supreme Court. Hence, returned.”

Hence, despite the order of the Supreme Court the petitioner continued to be in custody.

On being apprised of the fact that the order was transmitted through electronic mode immediately but the physical copy was sent in due course, which was received in the Jail on 06-10-2020, the Court expressed,

“This case portrays very sorry state of affairs.”

Disappointed by the reasoning of the Trial Court the Court clarified that the reason why stipulation was inserted in the order that “the petitioner shall be produced before the Trial Court within three days and the Trial Court shall release him on interim bail” was to expedite the process. The reason was not to put any limitation of a specified period within which time alone the bail could be availed and not thereafter. The Court remarked,

“The order was construed by the concerned Trial Court as if, after the expiry of three days, the petitioner had no right to be released on bail. We are surprised that a Judicial Officer had read the order passed by this Court, in the manner as it gets disclosed from his order.”

Hence, the Court directed the High Court to call for an explanation from the Presiding Officer concerned of the Trial Court and deal with the matter on the administrative side. At the same time, the Court expressed concerns as to whether similar kind of situations have arisen or do arise despite the order passed by the Supreme Court. Pursuant to which the Court suggested for a corrective mechanism—especially where the proceedings are initiated through the Legal Services Authority—and passed the following general directions:

  1. All the High Courts were directed to provide details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. The Court proposed for the High Court to maintain a register as to how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the Court concerned under whose orders the relief of bail was afforded to the person(s).
  2. The High Courts were directed to provide the details within six weeks.

With regard to the instant case, the petitioner had been released on bail. As a concluding note, the Court stated,

“We must observe that these matters be taken with utmost seriousness by the High Court and by all the concerned.”

The matter is listed on 11-07-2022 for further hearing.

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654, order dated 09-05-2022]


[1] (1980) 1 SCC 81

[2] (1978) 4 SCC 47


Appearance by:

For Petitioner(s):  Senior Advocate Mahalakshmi Pavani, AOR Revathy Raghavan, Advocates Divya Singhvi, Neha syal and Jeyam

For Respondent(s): Senior Advocate S. Niranjan Reddy, AOR Mahfooz A. Nazki, Advocate Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Rajeswari Mukherjee, K.V.Girish Chowdary, Akhila Palem, Abhishek Sharma and Sahil Raveen


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Vivek Kumar Birla and Vikas Budhwar, JJ., held that the law has been settled, that use of loudspeaker from mosque is not a fundamental right.

Petitioner’s Counsel filed the present petitioner for the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari for quashing the impugned rejection letter/order dated 03.12.2021 passed by respondent 3-S.D.M. Tehsil Bisauli, District Budaun, on application dated 20.08.2021 of the petitioner, (whereby permission has been rejected for playing loudspeaker/mike on the said mosque, at the time azan.

ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents 2 and 3 for granting permission to the petitioner for playing loudspeaker/mike on mosque (Noori Masjid) at the time of azan, situated at Village Dhoranpur, Tehsil Bisauli, District Budaun within stipulated period.

iii) Issue any other suitable writ, order or direction, as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

iv) To award costs of the petition in favour of the petitioner.

Petitioner’s counsel contended that the order impugned was wholly illegal and violates the fundamental and legal rights of the petitioner to run loudspeaker from the mosque.

High Court observed that use of loudspeaker from the mosque is not a fundamental right and dismissed the petition.[Irfan v. State of U.P., Writ-C No. 12350 of 2022, decided on 4-5-2022]


Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.

Finding the allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to be vague, devoid of particulars and unsupported by any materials, the Bench expressed,

“No particulars have been given of the number and/or percentage of erstwhile bureaucrats, who have contested elections on the ticket of a political party, not to speak of any act on their part, prior to their retirement, in deviation of the standards required of bureaucrats.”

Law on Mandamus

A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus. The right to compel performance of a public duty must be that of the Petitioner.

Hence, observing that there was no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner, the Bench held that the writ petition could not be entertained; the Bench observed,

“Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections.”

The Bench clarified that the writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affect public rights or when private rights are breached by or in collusion with public officers. The legal duty that may be enjoined by Mandamus can be one imposed by the Constitution, a statute, any law or by rules or orders having the force of law, which are capable of being judicially enforced.

Judicial Limitations on issuing Mandamus

“This Court, and/or the High Court, does not give any direction to the State to enforce an Act passed by the Legislature. Nor does the Court enforce instructions in a Departmental Manual not having statutory force, any non-statutory scheme or concession which does not give rise to any legal right in favour of the Petitioner, far less, any recommendation made by an authority such as the Election Commission.” Observing the aforesaid, the Bench held that it is for the Union of India to take a decision on the recommendation of the Election Commission, in accordance with law and that it is not for the Court to decide what should be the policy of the Government. Since, policy matters are never interfered with, unless patently arbitrary, unreasonable or violative of Article 14 of the 5 Constitution.

Observations and Conclusion

Noticeably, the petitioner had filed a similar petition in the Jharkhand High Court which had been dismissed; however the petitioner did not question the dismissal order in the Supreme Court. Therefore, the Bench held that the petition was barred by the principles of res judicata and/or principles analogous thereto. With regard to the issue raised, the Bench opined,

“There can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law. There can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency.”

Integrity, impartiality, neutrality, transparency and honesty being non-negotiable for the civil servants, the Bench held that ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.

Apart from the fact that no fundamental right of the Petitioner was in issue, the Bench opined that there was no merit in the contentions raised, even otherwise.

Hence, the Bench concluded that it is not for the Court to interfere in matters relating to framing of law, rules or policy and the question, whether there should be any “Cooling off Period” for civil servants for them to contest elections or not should be best left to the concerned Legislature.

Consequently, the petition was dismissed.

[Vivek Krishna v. Union of India, W.P. (C) No. 1034 of 2021, decided on 18-04-2022]


Appearance by:

For the Petitioner: Vivek Krishna (in person)


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: While addressing an appeal alleging solitary confinement of a death row convict, the 3-Judge Bench of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., directed local inspection by a District Judge to throw light on the ground situation.  

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

Dr. Yug Mohit Chaudhry, counsel for the appellant stressed that the appellant was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. To strengthen the argument the counsel submitted various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell that would amount to solitary confinement, in terms of the law laid down in Sunil Batra case (supra).

The State Government opposed the allegation of solitary confinement, however no specific reply was filed in the High Court controverting the basic allegations in the writ petition. The State had only requested that video conferencing be arranged to apprise the Court of the circumstances in which the petitioner had been lodged in a Cell.

The 3-judge Bench opined,

It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum.”

Therefore, the Bench directed the District Judge, Belgaum to conduct a local inspection and place a report along with pictures as early as possible and latest by 25-04-2022, to enable the Court to have a clear understanding of the ground situation. To make sure the report deals with required details the Bench issued following additional directions:

  1. “The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated.
  2. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent.”

However, the Bench clarified that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts.

With regard to status of Mercy Petition, the Bench directed the Registry to make copies of the file of Mercy Petition and return the same to the advocate on record concerned in a sealed cover. The matter is to be further heard on 26-04-2022.

[B.A. Umesh v. Union of India, Special Leave to Appeal (Crl.) No(s). 890 of 2022, decided on 21-04-2022]


Appearance by:

For Petitioner(s): AOR K. Paari Vendhan with Yug Mohit Chaudhry, Siddhartha Sharma, Prabu Ramasubramaniam, Payoshi Roy, Raghunatha Sethupathy B., Vishnu Unnikrishnan, Priya R, Advocates

For the Respondent(s): ASG K.M. Nataraj, AOR Arvind Kumar Sharma, AOR Shubhranshu Padhi, AAG Nikhil Goel, Sr. Advocate Sonia Mathur and Khushboo Aggarwal, Prerna Dhall, Simarjeet Singh Saluja, Shailesh Madiyal, Sanjay Kumar Tyagi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Aditya K. Roy, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Madras High Court: C.V. Karthikeyan, J., expressed that, “One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice.”

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Present petition was filed in the nature of Certiorari calling for the records of the impugned order passed by the first respondent and the consequential proceedings passed by the fourth respondent.

Noting that he was a Hindu, Court added that one of the basic tenets to be followed by every Hindu is tolerance and tolerance must be his own community or religion and in particular, to also to every other religious practice.

Petitioner raised objections against the fifth respondent who had apparently built a church, which in petitioner’s view caused nuisance because the respondent conducted prayers using loudspeakers throughout day and night.

Further, the petition was pending wherein the petitioner claimed to direct the first and second respondents and the Inspector of Police to ensure that the third to sixth respondents who were private individuals cannot use their house for prayer purposes by using loudspeakers and to remove the CCTV cameras put by the respondents in their house facing the house of the petitioner.

The above-said petition was disposed of based on the fifth respondent’s undertaking that he would not use loudspeakers.

In the instant petition, the grievance revolved around the approval granted by the first respondent with regard to building permission for the church. The petitioner being a resident was not directly involved with the construction. He may have grievances over the activities which were being conducted or for which the building was put to use.

Petitioner’s counsel complained that the building or now the church, was in the residential area, however, it was seen that there was also a temple in that residential area.

High Court remarked that,

“The petitioner should learn to live with everybody else around him. This country takes the pride in unity in diversity. There cannot be diversity in unity.” 

“Petitioner should accept the group of people living across and around with him and he should also accept that people of various faith and various caste, creed and religion and given rights under the constitution. The country is a secular country recognizing practice of religion.”

Further, the Bench observed that District Collector may by himself/herself have a meeting with the fourth respondent and impress upon the fifth respondent that it is only prudent to be restrained and it is not required that a prayer should be put forth in loudspeakers for the God to hear.

Lastly, the Bench stated that let the fourth respondent realize his responsibilities and appreciate that liberty had been granted to him to respect the residents in that area.

Hence, if the first respondent/District Collector either by himself/herself were to impress upon the fifth respondent to practice tolerance and respect, the Court was confident that sense and sensibility would prevail over pride and prejudice.

In view of the above, the petition was disposed of. [Paulraj v. District Collector, WP (MD) No. 1276 of 2020, decided on 10-1-2022]


Advocates before the Court:

For Petitioner: Mr C.Kishore

For R1 to R4: Mr N.Satheesh Kumar, Additional Government Pleader

Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]


Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsSupreme Court

Supreme Court: In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.

The Court held that,

“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”

What was under challenge and why?

The appellant is the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in Merchanting Trade Transactions (MTTs) that manufactures and trades in pharmaceuticals; herbal and skincare products; and personnel protection equipment products such as masks, gloves, sanitisers, PPE overalls, and ventilators. The appellant obtained an international MTT contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States.

At the relevant time, the export of PPE products had been banned by the Union Ministry of Commerce and Industry and the Directorate General of Foreign Trade, through successive notifications dated 8 February 2020, 25 February 2020 and 19 March 2020, due to the ongoing COVID-19 pandemic. Therefore, MTT contracts concerning PPE products were considered impermissible under Clause 2(iii) of the 2020 MTT Guidelines that stated,

“iii. The MTT shall be undertaken for the goods that are permitted for exports/imports under the prevailing Foreign Trade Policy (FTP) of India as on the date of shipment. All rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) shall be complied with for the export leg and import leg respectively.”

The appellant challenged the RBI and UOI’s prohibition of MTTs in respect of PPE products infringes his fundamental rights and freedoms under Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted that the precedents of this Court indicate that once the citizen can demonstrate that the restriction directly or proximately interferes with the exercise of their freedom of trade or to carry on a business, it is the State’s burden to demonstrate the reasonableness of the restriction and that it is in the interest of the general public.

Since the Union of India had prohibited the export of PPE products from India, RBI submitted that in accordance with Clause 2(iii) of the 2020 MTT Guidelines, MTT transactions concerning PPE products were also prohibited since they allowed Indian individuals to assist others in diverting PPE products away from India in the global market. Further, it was clarified that Clause 2(iii) was of a general nature, and the RBI had no jurisdiction to exempt products from its application, since only the UOI determined the nation’s FTP.

Analysis

Since the appellant had assailed the suitability of the measure restricting MTTs in ensuring domestic supplies and for being overbroad in its ambit, since an Indian entity acting as an intermediary in an MTT between two different countries does not impact the availability of PPE products in India, the Court answered four crucial questions that finally led to upholding the validity of the impugned policy decision.

  1. Is the measure in furtherance of a legitimate aim?

“Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47.”

The Court noticed that the appellant had not challenged the legitimacy of the aim of ensuring adequate PPE in India. Also, the RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products.

It was, hence, found that the executive’s aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, it was held that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.

  1. Is the measure suitable for achieving such an aim?

The Court considered the definition of MTT as defined in the International Monetary Fund in its sixth edition of the Balance of Payments and International Investment Position Manual which states:

“10.41 Merchanting is defined as the purchase of goods by a resident (of the compiling economy) from a nonresident combined with the subsequent resale of the same goods to another nonresident without the goods being present in the compiling economy. Merchanting occurs for transactions involving goods where physical possession of the goods by the owner is unnecessary for the process to occur.”

Hence, it was noticed that while the goods involved in an MTT never enter the territory of the intermediary, they are still recorded as negative and positive exports from the territory of intermediary during the import and export leg of the MTT, which is similar to how ordinary imports and exports would be recorded.

Therefore, MTTs are analogous to traditional imports and exports and hence, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.

  1. Is the measure necessary for achieving the aim?

While MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired.

Also, the UOI’s policy to ban the export of PPE products reflects their stance on the product’s non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply.

Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep India’s policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.

  1. Is the measure adequately balanced with the right of the individual?

In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks. As a developing country with a sizeable population, RBI’s policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned.

Epilogue

The Court noticed that the right to equality and the freedom to carry on one’s trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors.

“This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public.”

The Court, however, clarified that it was not its stance that judicial review is stowed in cold storage until a public health crisis tides over and said,

“This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic.”

[Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180, decided on 06.12.2021]


Counsels

For Appellant: Advocate Aayush Agarwala

For RBI: Advocate Ramesh Babu M R

For Ministry of Commerce and DGFT: Vikramjit Banerjee, Additional Solicitor General


*Judgment by: Justice DY Chandrachud

Experts CornerSiddharth R Gupta

Part I of this Article dwelt into the origins of the concept of non-arbitrariness through various judgments delivered in the decades of 1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of  E.P. Royappa v. State of T.N.[1] Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court in K.R. Lakshmanan v. State of T.N.[2], to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part I thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legislative action in the judgment of State of A.P. v. McDowell & Co.[3] How post distortion in McDowell[4], the Supreme Court did a systemic course correction in Shayara Bano v. Union of India[5] and settled the chequered legal position holding the ground today. The article shall also delve into “time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same.

 


Distortion in McDowell and its Resurrection in Shayara Bano


In State of A.P. v. McDowell & Co.[6], constitutional validity of certain provisions of Andhra Pradesh Liquor Prohibition (Amendment) Act, 1995 were assailed by the manufacturers of intoxicating liquor. The challenge relating to Article 14 and arbitrariness of the amending provisions was mounted essentially on the ground that though there was an absolute prohibition under the enactment, the exempted categories were allowed to consume intoxicated liquor in Andhra Pradesh. Thus the real purpose of imposing a total prohibition within the territories of Andhra Pradesh stood defeated by provisions relating to exemption of specified categories of manufacturers and consumers of liquor, which was pitched to be completely arbitrary. It was argued that roots of Article 14 were traceable to the Federal Constitution of the United States of America, wherein the power of the Parliament/State Legislature to make the laws is delimited by the Bill of Rights.  The 3-Judge Bench of the Supreme Court  vide para 43[7] onwards held that only two grounds are available for striking down any legislation/legislative action viz. “lack of legislative competence” or “violation of any fundamental right under Part III of the Constitution of India” or any other constitutional provision, or both. The Court further held that the ground of invalidation must fall within four corners of the wordings of Article 14, then only can it be struck down. In the context of Article 19(1), it was held that parliamentary/State legislation can be struck down only if it is found to be not saved by any of clauses (2) to (6) of Article 19. The Court in clear and categorical terms held that no enactment can be struck down merely on the argument that it is “arbitrary” or “unreasonable”, but there has to be some other tangible constitutional infirmity to be found before the legislation is declared unconstitutional. The Supreme Court vide para 46 held that applicability of arbitrariness as a ground for invalidating any legislation is confined only to legislative actions and no opinion was expressed insofar as its applicability to delegated legislation is concerned. The Court held that any act which is discriminatory can easily be labelled as arbitrary, but the reverse synthesis is not permissible. Accordingly, the Court repelled the challenge to the constitutionality of the A.P. Prohibition Act, on the specific anvil of the arbitrariness under Article 14 of the Constitution of India.

 

Thus, the judgment of McDowell[8] was essentially a clear distortion from the linear reasoning being adopted prior to it of legislations being invalidated if found “arbitrary” per se. The Supreme Court in McDowell case[9] thus completely shut the doors to entertain any argument of arbitrariness for assailing any legislative enactment.

 

Pertinently, McDowell case[10] had in its enthusiastic bid to hold or limit the applicability of arbitrariness doctrine to legislative enactments ignored its own binding decisions delivered prior in point of time. The first one being the Constitution Bench judgment in Ajay Hasia v. Khalid Mujib Sehravardi[11] by a larger Bench and the second one being the Coordinate 3-Judge Bench judgment in K.R. Lakshmanan[12].

 

Besides the line of reasoning adopted by the three-Judge Bench in McDowell case[13] was that American Courts have discouraged and dissuaded the employment of “substantive due process” for scrutinising and invalidating legislative actions in the US. Therefore the Court should not sit over the wisdom of the legislature and employ “substantive due process” to strike down legislative provisions. This reasoning was completely flawed as by this time, Maneka Gandhi v. Union of India[14] and its legacy had come to occupy the field with Articles 21, and 14 imbued with the spirit of substantive due process getting interconnected and interlinked with “reasonableness” under Article 19. This was said in so many words by Justice Krishna Iyer in the celebrated judgment of Sunil Batra v. Delhi Admn.[15], wherein the Court categorically held that Section 21 encompasses substantive due process and fairness also as a ground for testing any executive decision. Vide para 52, the Supreme Court in Sunil Batra[16] speaking through Justice Krishna Iyer held thus:

 

  1. True, our Constitution has no “due process” clause or the VIII Amendment; but, in this branch of law, after Rustom Cavasjee Cooper v. Union of India[17] and Maneka Gandhi[18], the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanise and civilise the lifestyle within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III.

 

McDowell21, which was a 3-Judge Bench pronouncement, was followed by multiple other subsequent judgments of the Supreme Court, as also the High Courts, which are not being spelt out herein, since the discussion has to now get routed to the verdict of Shayara Bano v. Union of India[19] of the Constitution Bench of the Supreme Court of India. Here the practice of instantaneous triple talaq was laid challenge to by Shayara Bano who was a Muslim lady and married to Rizwan Ahmed for 15 years, when in 2016, she was divorced by just being pronounced orally talaq thrice.

 

She approached the Supreme Court praying for writ declaring the orally declared triple talaq void ab initio on the grounds that it violated her fundamental rights. The question arose about the applicability of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provided that “notwithstanding any custom or usage to the contrary, all questions relating to marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaarat, etc. the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)”. Meaning thereby that in case of Muslims, by virtue of Section 2 of the Application Act of 1937, Muslim personal laws became automatically applicable in disputes appertaining to marriage, dissolution of marriage, including talaq.

 

The majority opinion led by Justice R.F. Nariman held that the practice of triple talaq is inherently unconstitutional. Referring to the long line of judgments of Sunil Batra[20], Mithu v. State of Punjab[21], the Court held that a law can always be tested on the allegations of it being arbitrary, oppressive and crossing all the bounds of reasonableness. The Court categorically held that McDowell case[22] had perhaps overlooked and ignored the binding nature and efficacy of multiple Constitution Bench and Coordinate Bench (3 Judges) judgments, which being earlier in point of time were all binding on it. Vide paras 82 to 84 of the Shayara Bano case25, the majority speaking through Justice R.F. Nariman held thus:

 

  1. It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments in Mithu case[23] and Sunil Batra case[24] that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.
  2. A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra[25] which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell[26].
  3. The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras[27] that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven-Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India[28] and followed in Maneka Gandhi[29]. Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of this Court, some of which are referred to in Om Kumar v. Union of India[30] and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.

 

Accordingly the Supreme Court expressly overruled the judgment of McDowell[31] and the consequent distortion caused by it. The law eventually resettled by Shayara Bano[32] is that applying the “arbitrariness doctrine”, even the legislative provisions can be struck down if they are found to be discriminatory, with their operation being whimsical, excessive, unreasonable or disproportionate. The Constitution Bench categorically held that this sort of arbitrariness will cut deeply through all kinds of State action, be it legislative or executive and would spare no one. The fine tuning of this doctrine was taken to highest standards in Shayara Bano[33] by holding that Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights as also other rights conferred by the Constitution. Hesitation or refusal on the part of constitutional courts to nullify the provisions of an Act meant to be unconstitutional on the technical grounds of “non-applicability of arbitrariness doctrine” to legislative actions even when such legislative provisions patently infringe constitutional guarantees in the name of judicial humility, would escalate serious erosion of remedies available to the citizens of this country under the Constitution.

 

The majority opinion of the Supreme Court thus in Shayara Bano[34] ultimately held that triple talaq is gender biased giving uncanalised discretion to a Muslim man/husband to strip off his marital ties with his wife through mere oral recitations. Therefore Section 2 of the Application Act of 1937 was held to be patently unconstitutional being manifestly arbitrary.

 

Two recent judgments of the Supreme Court in State of T.N. v. K. Shyam Sunder[35] and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy[36] reiterated the legal position that even legislative provisions can be struck down if found to be arbitrary and resultantly violative of Article 14. Vide paras 52 and 53, the Supreme Court in K. Shyam Sunder[37] observed as follows:

  1. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group[38], this Court held that:

205. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.”

  1. In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board[39] and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd.[40], this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article 14, the court must be satisfied in respect of substantive unreasonableness in the statute itself.

 

In the same vein, the Supreme Court vide para 29 in A.P. Dairy Development Corpn.[41] reiterated the legal proposition as follows:

  1. It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.

 

Completing the whole picture on the issue, it is luminescent that there is no inhibition for the constitutional courts to resort to arbitrariness doctrine for striking down any legislative enactment or provision. I am deliberately avoiding reference to a long line of judgments (more than 10 in number) where the Supreme Court in the last 10 years has struck down statutory provisions of any enactment on being found unreasonable, harsh, oppressive, onerous and resultantly arbitrary. It struck down legislative provisions on being found arbitrary even if not strictly discriminatory.

 


Article 14 and the Time Machine: Initial Judicial Responses


After an indepth analysis and scrutiny of correlation between “arbitrariness doctrine” and its applicability to legislative action, we shall undertake discussion on the specific topic as to how far passage of time can be a testing criteria for the validity of any legislation or legislative provision. In other words, whether any statutory provision which was constitutional to start with at the time of its enactment can be struck down on the ground of arbitrariness with the efflux of time; what impact “time as a factor” has on the applicability of arbitrariness doctrine to any legislative provision or enactment. Under these subheadings we shall be referring to some of the landmark judgments of the early decades of the 1950s, 60s and the 70s, wherein through various judgments of the Supreme Court, the constitutionality of any legislative provision was anchored on the tide of time as the testing criteria.

The first in the fray is the Constitution Bench judgment of the Supreme Court in Bhaiyalal Shukla v. State of M.P.[42] In this case the petitioner who was a government contractor challenged the levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts. Levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts, in District Rewa, which was falling under formerly State of Vindhya Pradesh, specifically after merger of that area in the newly constituted State of Madhya Pradesh formed on 1-11-1956 under the States Reorganisation Act. The sale of building materials in works contract was not subject to any levy of sales tax in another part of (the newly constituted) State of Madhya Pradesh. However the Court rejected the said contention holding that “the laws in different portions of newly constituted State of Madhya Pradesh were enacted by different legislatures and till they are repealed or altered by the newly constituted legislature, they shall continue to operate. Different laws in different parts of Madhya Pradesh, which were earlier part of a different demerged State which was earlier part of another State prior to its merger, would be sustained on the grounds of geographical classification arising out of historical reasons….”[43]

Thus in Bhaiyalal Shukla[44]  the Supreme Court did not directly answer the issue of effect of passage of time over validity of any legislation.

The next judicial milestone on the subject under discussion is State of M.P. v. Bhopal Sugar Industries Ltd.,[45] wherein the levy of agricultural income tax in Bhopal, formerly a part of Bhopal State was continued even post merger with the newly constituted State of Madhya Pradesh in 1956. In all other parts of the State, the levy was not being imposed on the identically placed landowners or assessees. The Supreme Court again referring to Section 119 of the States Reorganisation Act, 1956 held that differential treatment arising out of application of the laws pre-existing from the merger of said regions/States in the newly constituted merged State does not invite discrimination or offend equality clause under Article 14. However the Supreme Court acknowledged the impact “efflux of time” would have on the validity of any legislative provision, even though enacted with justifiable cause or reason on the date of its enactment, but later on becoming constitutionally pernicious for perpetuating a treatment not having reasonable cause or rational basis to support it. Vide para 7 (p. 6), the Constitution Bench of the Supreme Court held thus:

 

  1. This in the view of the High Court was unlawful because the State had since the enactment of the States Reorganisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income Tax Act in the Bhopal region would be consistent with Article 14 of the Constitution. We are unable to agree with the view of the High Court so expressed. It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. That initially there was a valid geographical classification of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether the continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after a full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circumstances, if any, which obliterated the compulsion of expediency and necessity existing at the time when the Reorganisation Act was enacted.

(emphasis supplied)

 

From the above observations it can safely be inferred that the Supreme Court delved upon the inevitable effect time would have on the validity of any legislation, especially in the context of its failure to pass the litmus test of “equal protection of laws” guaranteed under Article 14 of the Constitution of India. As would be detailed below, this jurisprudence has since thereafter been expanded again and again in various dimensions by the Supreme Court.

 

Another controversy which cropped up before the Constitution Bench of the Supreme Court in Narottam Kishore Deb Varman v. Union of India[46] was pertaining to the legality of Section 87-B of the Code of Civil Procedure, 1908. The provision under challenge required prior consent of the Central Government as a prerequisite for institution or trial of any suit against the ruler/maharaja of any State/Province, which got merged with the Indian Union. Though the Supreme Court repelled the constitutional challenge to validity of Section 87-B for historical and geographical justifications produced before it including the protection adumbrated under Article 372 of the Constitution of India. However at the same time, after affirming the constitutionality of Section 87-B, the Supreme Court required the Central Government to review and re-examine the extent of period to which the said protection of prior consent of the Central Government to be available as against the said provision being there on the statute book in perpetuity. Vide para 11, the Constitution Bench held thus:

 

  1. Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow Section 87-B to operate prospectively for all time. The agreements made with the rulers of Indian States may, no doubt, have to be accepted and the assurances given to them may have to be observed. But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that Section 87-B should continue to operate for all time. For past dealings and transactions, protection may justifiably be given to rulers of former Indian States; but the Central Government may examine the question as to whether for transactions subsequent to 26-1-1950, this protection need or should be continued. If under the Constitution all citizens are equal, it may be desirable to confine the operation of Section 87-B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and rulers of former Indian States. With the passage of time, the validity of historical considerations on which Section 87-B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.

 

Next in the series is the Constitution Bench judgment of the Supreme Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Department[47]. As in the earlier cases, the dispute in this case also arose out of the reorganisation of States in various parts of the country in 1956. The South Kanara District, formerly a part of State of Madras was reconstituted to be merged with the State of Mysore (now Karnataka) in 1956, and by reason of Section 119 of the States Reorganisation Act, Madras Hindu Religious and Charitable Endowments Act, 1951 continued to apply to South Kanara District nonetheless when it ceased to be part of erstwhile State of Madras. The challenge to applicability of Endowments Act of 1951 was mounted on the ground that South Kanara District was the only district in the whole State of Mysore (now Karnataka), which continued to be governed by the Madras State enactment, which was thus starkly offensive of Article 14.

 

The Supreme Court on the point of “time” rendering the purpose of any legislation ineffective or constitutionally offensive referred to celebrated Latin maxim of “cessante ratione legis cessat ipsa lex”, that is, “reason is the soul of the law and when the reason of any particular law ceases, so does the law itself”. It held that an indefinite extension and application of unequal laws for all times to come starts militating against the true character and laudable intent of being a “temporary measure” to serve a “temporary purpose”. Though the challenge to the constitutionality was repelled by the Supreme Court, but the majority speaking through Justice Y.V. Chandrachud reminded the legislature to wake up timely to the altered necessities of time. The majority opinion directing for suitable tailoring of the legislative provisions, lest it would lead to enactment being left vulnerable to constitutional attack observed vide para 31 of H.H. Shri Swamiji case48 thus:

 

  1. But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation – apart from two abortive attempts in 1963 and 1977 – to remove the inequality between the temples and mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the district of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the district of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem.

 

From the narrative of the various judgments in the early decades of the 20th century, it can safely be inferred that indefinite extension and application of unequal laws militates against their real character as also the true intent behind their enactment. The strong foundation on which the edifice of any legislation is erected gets weakened with the passage of time if inequality amongst equals continues unabated without sufficient justifications for continuing them. The Supreme Court has always batted for timely reviews and introspections of such categories of legislations, failing which the legislations are bound to become discriminatory and arbitrary attracting the wrath of Article 14.

With this, we are nearing completion of Part II of the three part series article. Part III of the series, which shall also be the concluding part, shall delve into the remaining issues of “obsolescence as a ground for arbitrariness” of any legislation and the extant position of law on the said proposition.


†Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in Constitutional Law Matters.

†† Final Year Student, B.A.LL.B (Hons.),  National Law Institute University (NLIU), Bhopal.

[1] (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[3]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[4]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[5] (2017) 9 SCC 1.

[6] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[7] (1996) 3 SCC 709, 737-38 : AIR 1996  SC 1627.

[8] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[9] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[10] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[11] (1981) 1 SCC 722 : AIR 1981 SC 487.

[12] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[13] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[14] (1978) 1 SCC 248 : AIR 1978 SC 597.

[15] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[16]  (1978) 4 SCC 494, 518-19 : AIR 1978 SC 1675.

[17]  (1970) 1 SCC 248.

[18] (1978) 1 SCC 248 : AIR 1978 SC 597.

21 (1996) 3 SCC 709 : AIR 1996  SC 1627.

[19] (2017) 9 SCC 1.

[20] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[21] (1983) 2 SCC 277.

[22]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

25 (2017) 9 SCC 1, 87 & 88-89.

[23] (1983) 2 SCC 277.

[24] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[25] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[26] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[27] AIR 1950 SC 27 : 1950 SCR 88.

[28] (1970) 1 SCC 248.

[29] (1978) 1 SCC 248 : AIR 1978 SC 597.

[30] (2001) 2 SCC 386.

[31] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[32] (2017) 9 SCC 1.

[33] (2017) 9 SCC 1.

[34] (2017) 9 SCC 1.

[35] (2011) 8 SCC 737.

[36] (2011) 9 SCC 286.

[37]  (2011) 8 SCC 737, 767.

[38] (2006) 3 SCC 434 : AIR 2006 SC 1489.

[39] (2007) 6 SCC 668 : AIR 2007 SC 2276.

[40] (2009) 5 SCC 342 : AIR 2009 SC 2337.

[41] (2011) 9 SCC 286, 303.

[42] AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[43] AIR 1962 SC 981 : 1962 Supp (2) SCR 257, para 18.

[44]  AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[45] AIR 1964 SC 1179 : (1964) 6 SCR 846.

[46] AIR 1964 SC 1590 : (1964) 7 SCR 55.

[47] (1979) 4 SCC 642 : AIR 1980 SC 1.

48 (1979) 4 SCC 642, 659 : AIR 1980 SC 1, 18.

Case BriefsSupreme Court

Supreme Court: In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. DY Chandrachud, Vikram Seth and BV Nagarathna, JJ has held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

Case Timeline 

  • The order of detention was passed on 11 May 2021 and the appellant was detained on 12 May 2021.
  • The order of detention was approved by the State Government on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day.
  • On 18 May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government.
  • The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021.
  • Representation was rejected by the Advisory Board on 15 June 2021.
  • The State Government rejected the representation, after the decision of the Advisory Board. While the affidavit filed before the High Court, did not specify the date on which the representation was rejected by the State Government, but leaves no manner of doubt that until the representation was rejected by the Advisory Board on15 June 2021, no steps had been taken by the State Government to deal with the appellant’s representation dated 18 May 2021. However, the counter-affidavit of the District Magistrate showed that the representation was rejected by the State Government on 15 July 2021.
  • The Supreme Court was neither provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the appellant’s representation.

Analysis of the Law

Article 22(5) of the Constitution

Article 22(5) of the Constitution mandates that

  • the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and
  • the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order”.

Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy.

In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. .

“The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”

National Security Act, 1980

The provisions of the National Security Act 1980 subscribe to the mandate of Article 22(5). Section 3(4) contains a requirement that once an order of detention has been made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter. No such order should remain in force for more than twelve days, unless it has been approved by the State Government. In the meantime, this period is subject to the proviso which stipulates that where the grounds of detention are communicated by the officer after five days (under Section 8) but not later than ten days from the date of the detention, sub-section (4) will apply as if the words fifteen days stands substituted for twelve days. Upon the State Government either making or approving the order under Section 3, it is under a mandate under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars.

Article 22(5) of the Constitution provides for the communication of the grounds on which the order of detention has been made by the detaining authority “as soon as may be”. Section 8(1) uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) also embodies the second requirement of Article 22(5) of affording to the detenu the earliest opportunity of making a representation against the order to the appropriate government.

Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials. It may call for further information from the appropriate government, or any person, or even the person concerned if they desire an opportunity to be heard in person.

Under Section 12, when the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith.

In terms of clause (a) and (b) of sub-section (1) of Section 14, both the State Government and the Central Government have the power to revoke an order of detention.

Ruling on Facts

The Court noticed that there was absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021.

In Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 had held that in State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible.

However, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action.

The Court hence, held that by delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously.

It was, hence, held that,

“The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.”

[Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, decided on 29.10.2021]


Counsels

For appellant: Senior Advocate Sidharth Luthra

For State: Saurabh Mishra, Additional Advocate General


*Judgment by: Justice Dr. DY Chandrachud

 

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. disposed of the instant petition with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. 

Facts

The facts of the present case are that petitioner is in live-in relationship with petitioner even when she was married with one. The petitioner 1 alleged in the petition that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make a choice of entering into a live-in relationship to live life with liberty and dignity. The present petition was filed to seek protection, as right to life is a fundamental right enshrined under Article 21 of the Constitution of India, and protection of right to life is imbibed in the same, and thus, such fundamental right cannot be done away with, except by due process of law.

Issues

The issues before this Court for consideration are:

(i) Whether the State ought to intervene in the personal relationships of adult citizens?

(ii) As to what would prevail, in case there is a conflict between law and morality; and

(iii) Whether the State, having a duty of protecting its citizens, is having any kind of restrictions, reservations or exception?

Observations

The Court relied on judgment Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 wherein it was observed that surrender of one’s autonomy to another must be willful, and their intimacy and privacy is a matter of their choice.

“64. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.”

The Court relied on judgment in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 wherein it was observed:

“23. . . . . .The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture.”

The Court relied on judgment S.S. Ahluwalia v. Union of India, (2001) 4 SCC 452  wherein it was observed that “it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.”

 The Court thus observed that it is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

It was also observed that the sanctity and supremacy of law must be protected at all costs. Even the due process of law through which the fundamental rights of any person are taken away must conform with the principles of justice and fair play and has to be reasonably administered according to the circumstances of the case i.e. there must be a proportionality between the illegality of the act and the right taken away through the due process of law.

The Court held “the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners.”

[Leela v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 5045/2021, decided on 15-09-2021]


Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Op EdsOP. ED.

The pro-democracy protests of Hong Kong and Belarus where citizens congregated using mobile apps are evidence of the political power of social media. This significance of the internet ecosystem amplified further during the second wave of the Covid-19 pandemic when social media played a major role in tackling the demand and supply gaps by amplifying requests for oxygen cylinders, life-saving drugs and other essential resources. However, while on one hand, the internet has provided new platforms for civic mobilisation and dissemination of information, on the other hand emerging online challenges have led to calls for digital surveillance and online censorship. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) that envisages a new regime for governing the internet ecosystem is an apt example in this regard.

 

While appropriate regulation is critical for preserving rule of law in the digital realm, such actions need to be cautiously scrutinised owing to their ability to impinge upon the fundamental right to free speech, privacy and anonymity of the users especially women and other marginalised groups.

The feasibility of internet shutdowns

The last few years have witnessed Governments around the world increasingly resorting to internet shutdowns in times of crisis due to concerns of public safety or to curb the spread of misinformation. A shutdown is an intentional disruption of the internet-based services rendering it inaccessible for a specific location or population. Countries including Sudan, Benin, Malawi, India and Egypt amongst many others have witnessed internet shutdowns at alarming rates since 2015. The reasons are manifold but usually range from legitimate national security concerns to those around elections and pro-democracy protests where shutdowns are used as a tool for curbing dissent.

 

Such sweeping measures are like a collective punishment and not a strategic response. When the internet is off, the ability of people to freely express themselves gets limited[1], journalists struggle to upload photos and videos[2], students are cut off from their classes, accessing health care services gets difficult[3] and the economy suffers[4]. In all, such actions lead to skewing the development of a population, widening the socioeconomic disparity between them and other States of the same country, and other countries.

App bans: Can national security be ensured at the cost of fundamental rights?

 

Restricting one’s access to digital applications has been a novel way of online censorship. Various apps, including social media are used to widen one’s platform of expression. It allows one to have better access to information and ensure creation of a more inclusive space considering that the internet transcends borders. Social media apps were even used by people during the initial days of the pandemic last year to develop businesses and to increase awareness of discrimination or injustices faced by the vulnerable and minority communities. Further, they also served as a powerful tool during the 2020 United States elections,[5] where people used platforms to disseminate relevant information for voters.

 

Despite the advantages, Governments commonly justify the actions around banning internet applications by citing concerns for national security and public safety. For instance, with over 140 apps banned in India last year, the reasons for the same included dangers posed to the sovereignty, integrity and defence of India. However, experts across regimes have noted that such actions are most often counterproductive where they result in severely restricting people’s freedom of expression and right to information.

They also signal towards the deep-rooted regulatory incapabilities in a country’s cybersecurity infrastructure that forces it to rely upon such emergency blocking orders and bear the ensuing economic and geopolitical implications.

Online censorship: How much can a democracy withstand?

Censorship, for decades together, has been a tool used to curtail free speech and suppress dissent. In India, Section 69-A of the Information Technology Act, 2000 authorises the Central Government to block public access of any information online. Similar to all other fundamental rights, free speech is also subject to certain reasonable restrictions like national security amongst others and the mandate under Section 69 is in pursuance of the same. However, the non-disclosure of the orders for public scrutiny leading to disabling the citizens and the higher judiciary to meaningfully exercise their right to constitutional remedies and the power of judicial review respectively is a concern.

 

Likewise, the IT Rules, 2021 were promulgated to tackle the legitimate cybersecurity threats grappling the internet and ensure better protection of user interest. However, certain provisions like the stringent timelines for takedown and information assistance, personal liability of compliance officers, originator traceability, proactive monitoring, extended time period for data retention and enhanced scope of “actual knowledge” requiring intermediaries to take down content on the behest of users have led to concerns regarding the successful implementation of the new regime owing to their legal and technical infeasibility. Though enacted with the purpose of creating a more inclusive ecosystem, the overarching nature of these mandates pose concerns like a chilling effect on free speech, unreasonable restrictions on privacy and disproportionate censorship.

The road ahead: Laying the foundation for a free and inclusive internet

 

The future of free expressions, privacy and democratic governance rests on the decisions we make today. The importance of preserving right to free speech and access to information for creating an empowering online space has been observed by constitutional courts across the world.

 

Similar observations have also been made by several internationally acclaimed bodies including the UN Human Rights Council[6] and the ITU-UNESCO Commission[7].

 

A study conducted by The Dialogue on the American and Indian platform regulation regime shows that privacy and safety can and should be achieved together.[8] In fact overarching restrictions on civil rights lead to a deleterious impact on user safety and national security as well. Accordingly, with the past experiences and evidence-based research proving that measures like rampant internet shutdowns, app bans and online censorship are not sustainable, it is crucial to adopt a multi-stakeholders approach to tackle the perennial law and order challenges on the internet.

 

To this end, Governments should ensure that social media companies continue to benefit from the safe harbour protections unless they have an “actual knowledge” regarding the illegality of any content. Overarching regulations around content takedown, proactive monitoring, originator traceability and personal liability of platform’s employees should be resisted and implementable standard operating procedures should be developed with the help of legal and technical experts to ensure the feasibility of the norms governing the digital space.

 

Likewise, platforms must prioritise the user’s right to free speech and expression by ensuring that their terms of service and community guidelines align with their obligations under Pillar II of the UN Guiding Principles on Business and Human Rights[9]. Aligning the content moderation policies with the Manila Principles on Intermediary Liability[10] and the Santa Clara Principles on Transparency and Accountability in Content Moderation[11] which are the global standards on progressive platform regulation is also crucial.

 

Moreover, given that protection of rights is impossible without appropriate awareness regarding their existence and importance, initiatives around propagating digital literacy and awareness must also be prioritised. Civil society organisations should work towards educating users about appropriate behaviour in digital space and the ways to protect oneself from online harms through training around ways to detect misinformation or to flag and report inappropriate content on the prominent platforms.

 

Only with the users, Government, platforms, and civil society working together towards finding meaningful solutions can a free and inclusive internet that is crucial for living a life in this digital age be ensured for all.


† Research Associate (Platform Regulation) at The Dialogue.

[1] Freedom of Expression on the Internet, Organisation for Security and Cooperation in Europe, 15-12-2011 <https://www.osce.org/fom/80723>.

[2] Lungelo Ndhlovu, Facing Internet Restrictions, Journalists Turn to VPNs, 26-3-2015 <https://ijnet.org/en/story/facing-internet-restrictions-journalists-turn-vpns>.

[3] Meenakshi Ganguly, “Kashmir Shutdown Raises Healthcare Concerns”, Human Rights Watch, 30-8-2019 <https://www.hrw.org/news/2019/08/30/kashmir-shutdown-raises-healthcare-concerns>.

[4] “The Economic Costs of Government Internet Interruptions”, 7-5-2019 <https://www.riskmanagementmonitor.com/the-economic-costs-of-internet-interruptions/>.

[5] Rosamund Hutt, ​​”What are your Digital Rights?”, World Economic Forum, 13-11-2015 <https://www.weforum.org/agenda/2015/11/what-are-your-digital-rights-explainer/>.

[6] Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom, A/ HRC/ 17/27, 16-5-2011 <https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf>.

[7] Cannataci Joseph, Privacy, Free Expression and Transparency: Redefining Their New Boundaries in the Digital Age, UNESCO Series on Internet Freedom, <https://en.unesco.org/unesco-series-on-internet-freedom>.

[8] Shreya and Tiwari, Analysing the American Safe Harbour Regime: Takeaways for India, The Dialogue, Dec 2020 <https://thedialogue.co/wp-content/uploads/2020/12/Analysing-the-American-Safe-Harbour-Regime_Takeaways-for-India_The-Dialogue.pdf>.

[9] Pillar II, “UN Guiding Principles on Business and Human Rights”, OHCHR <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.

[10] Manila Principles on Intermediary Liability, <https://www.manilaprinciples.org/>.

[11] “The Santa Clara Principles: On Transparency and Accountability in Content Moderation” <https://santaclaraprinciples.org>.

OP. ED.SCC Journal Section Archives

The Constitution of a country is the supreme law. A written Constitution with a Bill of Rights seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws. When human rights are incorporated into the municipal law and guaranteed by a written constitution, they are called fundamental rights and are justiciable and enforceable. As the Supreme Court significantly observed in Minerva Mills Ltd. v. Union of India1:

 

All States, whether democratic or authoritarian, purported to govern for the welfare of the people. What distinguishes a democratic State from a totalitarian one is that a free democratic State respects certain basic human rights or fundamental rights and endeavours to achieve its objectives through the discipline of fundamental freedoms.

 

We begin with the concept of “State” in Article 12. The constitutional mandate in many of the provisions in the chapter on fundamental rights is to the State not to violate fundamental rights. The State is prohibited from making laws inconsistent with Part III. Fundamental rights are enforceable against the State whose import has been expanded over a period of time.

 

READ COMPLETE ARTICLE HERE


*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 3 SCC J-44

* Advocate. Author, Working of the Constitution : Checks and Balances (1st Edn. 2014, Eastern Book Company) and Revising Author, V.G. Ramachandran’s Law of Writs [7th Edn. 2021 (In Press), Eastern Book Company].

1(1980) 3 SCC 625.

2[1913] A.C. 417, p. 477 (HL).

3Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

4A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

6Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

7Id, pp. 877-78, paras 1703-04.

81948 SCC OnLine US SC 59, para 30 : 92 L.Ed 1161 : 334 US 1 (1948).

91944 SCC OnLine US SC 18 : 88 L Ed 497 : 321 US 1 (1944), p. 16.

10Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, p. 34, para 122.

11Snowden v. Hughes, 1944 SCC OnLine US SC 18, para 30 : 88 L Ed 497 : 321 US 1 (1944).

12AIR 1955 SC 191.

13Snowden case, 1944 SCC OnLine US SC 18, para 30.

14AIR 1963 SC 1909.

15(1998) 4 SCC 409.

16Vinay Chandra Mishra, In re, (1995) 2 SCC 584.

17(2000) 1 SCC 278.

18Afzal v. State of Haryana, (1996) 7 SCC 397.

19(2010) 14 SCC 209, p. 224.

20ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

21Ram Deo Chauhan case, (2010) 14 SCC 209, p. 224, paras 50-52.

22(2014) 1 SCC 697.

23Anjan Kumar Banerjee v. State of W.B., WP (C) 49 of 2009, order dated 9-10-2012 (SC).

24(2016) 9 SCC 746.

25CBI v. Ashiq Hussain Faktoo, (2003) 3 SCC 166.

26(2016) 9 SCC 739.

27Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.

28Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.

29(1980) 2 SCC 437.

30R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2), [2000] 1 A.C. 119 : (1999) 2 WLR 272 (HL).

31[2000] 1 A.C. 61 : (1998) 3 WLR 1456 (HL).

321950 SCR 566 : AIR 1950 SC 163.

33AIR 1966 SC 81.

34(1987) 1 SCC 395.

35Id, pp. 407-08, para 7.

36K.K. Mathew, Democracy, Equality and Freedom, Eastern Book Company, (1978), p. 21, fn 46.

371940 SCC OnLine PC 10 : AIR 1940 PC 105.

38(1977) 3 SCC 592, p. 646, para 134.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., allowed and disposed off a writ petition which was filed aggrieved of the respondent’s action of reflecting petitioner’s name in the list of ineligible/rejected candidates.

Petitioner had acquired GNM Diploma Course and was professionally qualified for the post of Nurse Grade-II/GNM, vied pursuant to recruitment notification dated 30-05-2018, issued by the respondents for filling up 6035 posts of Non-TSP area. All other formalities of registration with the Rajasthan Nursing Council (RNC) were up to date and only after which she was selected as Nurse Grade-II on a contractual basis and had been discharging her duties at MDM Hospital, Jodhpur since 01-09-2009. While she was working here a contractual basis the State of Madhya Pradesh had issued a recruitment notification for filling up regular posts of GNM for which the requirement was to have registration in the State of Madhya Pradesh and thus, she had applied for migration of her registration to Nursing Council, Bhopal on 21-07-2011 but before which she changed her mind requested that State of MP not to the registration certificate. Later, when the respondents issued the recruitment notification as of 30-05-2018, she filled the form. Meanwhile, the petitioner’s registration certificate expired on 31-12-2018, thus, she applied for renewal of registration, while depositing requisite fee. She was informed that her registration certificate had been wrongly renewed in 2014. According to the respondent – Council she had obtained NOC in the year 2011, her registration could not be renewed in December, 2014 after which she filed for fresh registration. The petitioner appeared in the written examination and having secured higher marks (63.939%) than the cutoff of her category   (58.192%),   she was called for document verification in which she produced her original registration certificate with   Rajasthan Nursing   Council dated   11-02-2009   (having its validity till 31-12-2018), along with other relevant documents. Petitioner also produced proof of having applied for renewal/fresh registration. The petitioner found her name reflected in the list of rejected candidates, citing “Rejected due to RNC”.

Counsel for the petitioner, Mr Yashpal Khileree submitted that Para 5 of the advertisement which dealt with the eligibility clause stated that a candidate applying for the post of Nurse Grade-II was required to have a valid registration till the last date of submitting the application form (12-05-2018). He further submitted that on the last date of submitting application form namely 03-07-2018 (and even on 12-05-2018), the petitioner was possessed with a valid certificate and as soon as the validity of the registration expired,   she had applied for renewal thereof.   He added that since the respondents delayed renewal of the said certificate, she was constrained to apply for registration afresh, on 19-08-2019, prior to the date of document verification. He further drew Court’s attention to an order issued by the respondent particularly Condition No.15 thereof and submitted that the respondents themselves have relaxed the condition of the advertisement.

Sum and substance of arguments of counsel for the State, Mr K. S. Rajpurohit, AAG assisted by Mr Shreyansh Mehta, Mr Abhinav Jain for Mr Mahendra Vishnoi was, that petitioner did not have a valid registration on the date of submitting an application form and thus even if she was able to obtain a fresh registration on 13-01-2020, she could not be held eligible for appointment.

The Court observed that the petitioner cannot be alleged to be lax in any manner which was evident from the fact that when she could not get her registration renewed, she applied for fresh registration by way of submitting an application and tendering requisite fee of   Rs 2000. The Court further observed that the respondents have not placed on record any document evincing that the petitioner had been put to any notice about such wrongful renewal, have failed to bring to the notice of this Court, any statutory provisions or guidelines etc. providing that merely on the issuance of a ‘NOC’ by Nursing Council of one State, a candidate’s registration stands cancelled. They further could not being any evidence that the petitioner had got herself registered with Nursing Council, Bhopal and continued with dual registration. Court reached an unwavering conclusion that the petitioner fulfilled both the requirements, namely – having a valid registration certificate on the date of submitting the application form and also the other requirement in terms of Regulation 46 of the Regulations of   1964,   as she was having a   valid registration certificate at the time of issuance of the select list.  The Court thus held that the Petitioner’s eligibility, therefore, could not be questioned.

The Court explained that if respondent’s stand that immediately on grant of no objection certificate by Rajasthan Nursing Council, a candidate’s registration stands cancelled was taken to its logical end, then in the opinion of this Court, during the interregnum period of issuance of a no objection certificate by RNC and grant of registration by other State, a duly qualified and eligible Nurse Grade-II/Midwife would lend themselves in no man’s land – a situation of having no registration at all.  Such situation, would naturally impinge upon a candidate’s fundamental rights guaranteed by Articles 14, 16 and 19(1)(g) of the Constitution of India.

The petition succeeded and the Court ordered that the list reflecting the petitioner’s name in the list of rejected candidates to be quashed and set aside.[Sangeeta Mathews v. State of Rajasthan, S.B. Civil Writ Petition No. 1552 of 2020, decided on 19-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of Pakistan: In a significant decision, the 3 Judge Bench of the Court comprising of Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ., while deliberating upon issues revolving around the scientific veracity of virginity tests to ascertain rape and questioning a woman’s sexual history in order to discredit her witness; held that a woman irrespective of her sexual character or reputation, is entitled to equal protection of law. The courts should discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

Issues: In the instant appeal filed by the rape accused, the Court upon perusing the facts and arguments presented by the parties, formulated the following issues-

  • Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific validation or evidentiary relevance to determine the commission of the sexual assault of rape.
  • Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility.
  • Whether her promiscuous background can be made basis to assume that she must have consented to the act.

Perusing the aforementioned issues, the Court delved into the approaches of modern forensics vis-à-vis TFT and studies conducted by Pakistan’s National Commission on the Status of Women (NCSW) on the point. The Bench also took note of the approach taken by the World Health Organisation, the United Nations and United Nations Entity for Gender Equality and the Empowerment of Women on the matter. It was observed that Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as rigorous exercising. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.

Considering the constitutional aspects, the Court stated that dragging sexual history of the rape survivor into the case by making observations about her body, is an insult to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution of Islamic Republic of Pakistan. reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution, which is an absolute right and not subject to law. “Right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable”.

The Court also pointed out the deep gender biases and inexperience which riddle the medico-legal certificates, like- casually reporting the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a ‘virgin”; calling into question the character of the rape survivor etc. The Court stated that such callous approaches are used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. “Examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity”.

The Court also pointed out that the omission of Article 151(4) Qanun-e-Shahadat Order, 1984 (which allowed the opinion of medical experts as to the virginity tests while deciding rape cases), clearly implies a prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged “general immoral character” for the purpose of impeaching her credibility. The said omission also indicates the legislative intent that in a rape case the accused cannot be allowed to question the complainant about her alleged “general immoral character”.

As a final point, the Bench observed that, “While allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant’s rights to dignity and privacy, to keep the scales of justice even”.

[Atif Zareef v. The State, Criminal Appeal No.251/2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.


Note: The bench of Justice Ayesha A. Malik of Lahore High Court had also made similar observations in Sadaf Aziz v. Federation of Pakistan, wherein she held that virginity tests are invasive and blatantly violate the dignity of a woman.