OP. ED.SCC Journal Section Archives

 A TWO judge bench of the Supreme Court,1 in Union of India v. Paul Manickam,2 a case challenging the preventive detention of the respondent’s daughter as unlawful has observed as under:3

It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under article 32 of the Constitution to approach this court directly, it has to be shown by the petitioner as to why the high court has not been approached, could not be approached or it is futile to approach the high court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under article 32 of the Constitution is to be discouraged.

This observation of the apex court that before a person complaining of violation of his fundamental rights approach the Supreme Court under article 32 should approach the high court first under article 226, raises serious questions as to the true scope and ambit of article 32.

In the instant case the respondent who is the father of the detenue who was detained under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for possessing a huge quantity of contraband articles, addressed a representation on her behalf to the President of India. He also filed a habeas corpus petition before the Madras High Court challenging the detention order. The court dismissed the writ petition but on his application for review it quashed the order of detention. Hence this appeal by the Union of India to the Supreme Court.

Thus, it was not the petitioner who approached the Supreme Court by way of a writ under article 32 for setting aside the order of detention. Instead it was the Union of India which approached the Supreme Court by way of appeal under article 136 of the Constitution by raising various contentions, inter alia, that:4

[R]enegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this court under article 32 even without approaching the jurisdictional High Court.

What made the Union of India to take this pea is not clear from the facts of the case since the petitioner had not approached the apex court directly. It was against this plea, the Supreme Court, while dismissing the appeal by the Union of India in the instant case expressed the above quoted view.

 To read the full text of the article, click here 


NOTE: This article was first published in the Journal of the Indian Law Institute 47 JILI (2005) 102.

* Associate Research Professor, Indian Law Institute, New Delhi.

1 Doraiswamy Raju and Arijit Passayat JJ.

2 (2003) 8 SCC 342 : AIR 2003 SC 4622.

3 Id. at 4630. (Emphasis added).

4 Id. at 4624.

OP. ED.SCC Journal Section Archives

I

The architects of the India Constitution perceived that, for the Republic to survive, the Constitution must be Supreme. They also realised that the supremacy of the Constitution depends upon an independent judiciary—one with power to resolve disputes between the States, between the State and the national governments, and, most importantly, between individuals and government. However, in recent years, the Indian Supreme Court has been subjected to much ill-informed and native criticism. “To distrust the judiciary,” Honore Balzac once said, “marks the beginning of the end of society.”1 My object here is not to defend the Supreme Court against these attacks, but to pay tribute to one of its members, Mr Justice V.R. Krishna Iyer, who retired recently, after a little over seven years of distinguished service on the Court. While aware of the storms that raged about the Court, he welcomed disinterested criticism which stirs in the Court a continual awareness of its accomplishments and failures. Justice Krishna Iyer, however, though of the Court as an “institution” and tried hard to reconcile divergent views where he believed their expression would injure the institutional character of the Court; he acted not simply to improve the Court’s image, but, rather, to give strength to the rule of law.

II

It has often been remarked that Indians are the most litigious people in that every great issue is transformed into a question of law. The Judge is exalted as Lawgiver and Prophet in the Temple of Justice. He must have the wisdom of Solomon, the moral vision of Isaiah, the analytic power of Socrates, the intellectual creativity of Aristotle, the humanity of Lincoln and Gandhi, and the impartiality of the Almighty. Measured by these expectations every judge is something of a disappointment. But Justice Krishna Iyer understood the nature of the challenge. A study of his over 300 published opinions and numerous extra-curricular writings2 reveals a picture which is truly unique; they attest to the eloquent constancy with which he has placed his imprimatur on the principles of individual liberty and political equality. Any socially conscious judge, especially in a developing country like India, needs to be resourceful, versatile, and experimental, in relating human problems to a complex background of modernity and tradition. Mr Justice Brandeis once said that a lawyer who has not studied economics and sociology is apt to become a public enemy. Mr Justice Cardozo went further. The law was always a jealous mistress; but nowadays, said Cardozo, she has become “insatiate in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less”.3 Unusually well versed in this Cardozian Kamasutra, Justice Krishna Iyer’s experience—a former politician, legislator, administrator, one-time minister, judge of the High Court of Kerala, member of the Law Commission of India—seems to come vibrantly alive in his Supreme Court judgments.4

Like Lord Denning5 in England and the late Mr Justice Douglas6 of the United States Supreme Court Justice Krishna Iyer has been the champion of the underdog—“the little man”—in securing him justice—social, economic and political. How sensitive his antennae are to what the ordinary man thinks is best illustrated in his recent book, Some Half-Hidden Aspects of Indian Social Justice (1980), where he articulates the idea of social justice, as contrasted with the concept of formal justice according to which it was sufficient that the rich and the poor were equal before the law and which ignored the stark reality of economic bargaining power. The State has enlarged its functions; government departments wield wide powers which of necessity restrict individual freedom and, though well-intentioned, may cause harm and distress to the citizen. In Justice Krishna Iyer’s view, in modern Indian society the scales must be kept even by the courts—citadels of justice—not only between man and man but also between the citizen and the State.

Thus, in a recent case,7 he found it distressing that the State, ignoring the constitutional mandate of equal justice to the indigent, sought reversal of the order of the High Court of Haryana which had rightly extended the pauper provisions to auto-accident claims. He was incensed that the State, instead of acting on social justice and generously setting the legitimate claim of a widow and a daughter for the killing of the sole bread-winner by a State transport bus, should be fighting like a “cantankerous litigant even by avoiding adjudication through the device of asking for court-fee from the pathetic [victims]”.8

In yet another case,9 he chastised the Rajasthan State Road Transport Corporation for its absence of a “sense of safety, accountability and operational responsibility” and regretted the “callous” and “unconscionable” attitude of many State-owned monopolies. The Corporation should have sympathised with the victims of the accident rather than tenaciously resisting the claim on flimsy grounds: “What is needed is not callous litigation but greater attention to the efficiency of service, including insistence on competent, cautious and responsible driving.”10

III

Justice Krishna Iyer has been very skilful in harnessing the potential of an existing decision to support the egalitarian result he seeks to accomplish. One example is the recent Maneka Gandhi11 interpretation that Article 21 (“[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”) mandates that “the procedure must be reasonable and fair and not arbitrary or capricious”, which overturned the seminal Gopalan case (1950)12 and its progeny. This, in effect, converts Article 21 into a due process clause.

The long-term ramification of this iconoclastic decision13 needs to be watched circumspectly for a variety of reasons. First, the Court relied on a truncated clarification of Gopalan in the Bank Nationalisation case.14. Second, the Court ignored that the word “liberty” in Article 21 was qualified by the word “personal” deliberately to avoid so wide an interpretation as might include even the freedoms conferred by Article 19. Third, couched in negative language, obviously Articles 20, 21 and 22 cannot include the freedoms conferred in Article 19; it would be incongruous to suppose that freedoms denied to non-citizens by Article 19 are nonetheless available to non-citizens under Article 21. Fourth, the Maneka interpretation seriously collides with the unambiguous intention of the framers of the Constitution who preferred the more definite phrase “procedure established by law” in place of “due process” clause, for the power of judicial review implied in the due process clause was thought not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the elected representatives of the nation) but also threw an unfair burden on the judiciary.15 Fifth, the new interpretation renders Article 22(1) virtually otiose. Admittedly, Maneka could have been decided on narrower grounds without endowing Article 21 with the sweep of an Aladdin’s Lamp,16 for the Supreme Court, in view of its great responsibility, should be reluctant to reach beyond the case at hand in formulating the principles of decision.

Indeed, carried away with the exuberance of Maneka, the Court, and particularly Justice Krishna Iyer, has nursed the renaissance of substantive due process, as the new interpretation of Article 21 has been extended to include rights to speedy trial,17 free legal service,18 bail,19 at least one appeal,20 and the horizons of this extension appear limitless. Recently, the extended this broad sweep of Article 21, to prohibit the jailing of delinquent debtors for the recovery of debts for to “be poor in this land of Daridra Narayana … is no crime”.21 “True,” observed Krishna Iyer in a recent case, “our Constitution has no ‘due process’ clause …, but in this branch of law, after [Bank Nationalisation] and Maneka Gandhi the consequence is the same.”22 That “due process” can be the tool of an activist judiciary raises recurring questions about the proper sources of judicial interpretation and about the proper role of the judiciary in a democracy.

Some recent decisions of the Supreme Court in general and of Justice Krishna Iyer in particular have highlighted the hitherto neglected field of prison jurisprudence.23 The issue of prison conditions and environment has emerged as one of the predominant themes of correctional philosophy, raising questions concerning inmates’ rights and the blight of prison life. For lawful imprisonment limits the constitutional rights of prisoners and pre-trial detainees but does not eliminate their rights entirely: “Imprisonment does not spell farewell to fundamental rights although, by a realistic reappraisal, courts will refuse to recognise the full panoply of Part III [fundamental rights] enjoyed by a free citizen.”24

Courts for many years followed a “hands-off” policy towards prisoners’ rights, choosing instead to rely on prison officials’ expertise and declining to interfere with internal prison administration. But, in Charles Sobraj v. Superintendent, Central Jail, Tihar25 Justice Krishna Iyer delineated the scope of prisoners’ constitutionally protected rights, delivering a coup de grace to the “hands-off” doctrine and “take-over” theory. In his view, the Supreme Court will intervene with prison administration “when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner [but will decline to do so] where lesser matters of institutional order and management … are alone involved”.26 In determining whether a constitutional violation has occurred, the Court will give broad recognition to legitimate prison interests in maintaining security and order and in promoting prisoner rehabilitation. And, unless acting to remedy constitutional violations, the Court is not to become enmeshed in the minutiae of prison operations.27 Justice Krishna Iyer has aggressively intervened to ensure that constitutional and “statutory” principles are not forgotten in the treatment of prisoners and that the time-honoured image of the Supreme Court as the palladium of civil liberties is not blunted. Justice Krishna Iyer’s decisions28 contain a scathing indictment of our prisons, which are often filthy, grossly overcrowded institutions where inmates are denied adequate food, medical attention and provisions for personal hygiene, are constantly subjected to violence from other inmates and guards, and are confined under brutal and dehumanising conditions which impede rehabilitation. (This is largely because governments are unwilling to devote a greater share of scarce resources to the improvement of living conditions for the incarcerated.) The tactic logic of his decisions29 will rightly require the protection of prisoners from abuses such as racial discrimination,30 the constant danger of assault by other inmates,31 solitary confinement,32 excessive corporal punishment,33 harsh and degrading jobs,34 arbitrary decisions regarding prison discipline and punitive transfers,35 unjustifiable restrictions on the right to practice religion, read, speak, and correspond,36 and receive legitimate visitors.37 In a recent case, Prem Shankar Shukla v. Delhi Administration38, he banned a routine handcuffing of prisoners as “a constitutional mandate” and declared the distinction between classes of prisoners as obsolete: “[I]t is arbitrary and irrational to classify prisoners into ‘B’ class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equality.”39

While recognising that handcuffs could be used “where the person is desperate, rowdy or … involved in non-bailable offence”40, Justice Krishna Iyer required that even “in [these] extreme circumstances [where] handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law”.41 To prevent further constitutional deprivations, Justice Krishna Iyer has ordered forms of relief not normally required by the Constitution but nevertheless necessary given the circumstances if the Court’s efforts are to be successful. Thus, going beyond the Court’s traditional role, Justice Krishna Iyer has shown a predilection for ordering sweeping institutional reforms of the overall living conditions in the challenged prison, by arguing that Article 21 is the jurisdictional root for this legal liberalism.42 Only an overwhelming orientation to result seems to explain such an approach.

One is greatly impressed, and deeply moved, by Justice Krishna Iyer’s remarkable combination of dedicated human feeling with a judicial resourcefulness nothing short of virtuosity in advocating the development of a new sentencing culture, harmonising the needs of crime prevention and humanisation, in accordance with the “[c]onstitutional karuna [mercy] … injected [by Articles 14, 19(5) and 21] into incarcerator strategy to produce prison justice”.43 The rehabilitative ideal thus explains his aversion to capital punishment44 and the imposition of long and punitive periods of incarceration in virtually all areas of criminal behaviour45 (except, perhaps, for white collar offences46). The underlying rationale is that these crimes—of passion or violence—are the unwilled acts of an accused, products as they are of a decadent social environment, deprivation and a host of related causes. As such, consistent with the concepts of “[k]aruna, daya, prema and manavata [—] concepts of spiritualised humanism secularly implicit in our constitutional preamble”.47 the primary purpose of prison sentence is “hospital setting and psychic healing, not traumatic suffering”48 and that “correctional strategy is integral to social defence which is the final justification for punishment of the criminal.”49

It appears, however, that Justice Krishna Iyer would not extend the same degree of correctional sensitivity to white collar criminals and to those violating strict liability offences.50 For example, in Pyarali K. Tejani v. Mahadeo Ramchandra Dange51 where the accused argued that he believed in good faith that there was no cyclamate in the scented supari sold (induced by the warranty) and honestly did not know that saccharin was contraband (the rules thereof having been changed frequently), Justice Krishna Iyer tartly replied: “It is trite law that in food offences strict liability is the rule not merely under the Indian [Prevention of Food Adulteration Act, 1954] but all the world over.”52 Relying on a passage from American Jurisprudence,53 he stressed that nothing more than actus reus was needed where regulation of private activity in vulnerable areas like public health was intended: “[I]ntention to commit a breach of statute need not be shown. The breach in fact is enough.”54 True, the protection and welfare of the society were the paramount concerns that Justice Krishna Iyer invoked in favour of strict liability, but, surely the recognition of a bona fide mistake especially in view of the ever-changing rules contrabanding and discontrabanding saccharin would not have been incompatible with correctional goals. Would not a procedure that fails to allow a proof of bona fide mistake and callous governmental inactivity in publicising the relevant regulations properly fall short of the requirement of Maneka Gandhi?55

The role of strict liability in combating socio-economic offences has received unqualified support in the judgments of Justice Krishna Iyer. This is further revealed in Kisan Trimbak v. State of Maharashtra56 were the accused, pleading guilty to storing for sale adulterated buffalo milk (with 16.3 per cent fat deficiency and 17.8 per cent added water) and also for misbranding it as cow milk, successfully persuaded the trial court to treat them leniently, because their large family of fifteen survived on paltry profits from their small restaurant. The trial court fined them nominally adding that the adulteration, being only of water, “was not injurious to human health”. Justice Krishna Iyer, affirming the High Court’s enhancement of punishment to six months imprisonment plus monetary fine of Rs 500 each, condemned the “magisterial indulgence [leniency] when society is the victim and the stakes are human health, and, perhaps, many lives [and recognised] that the mandate of humanist jurisprudence is sometimes harsh”.57 Analysing the reasons underlying the imposition of absolute liability for food adulteration, Justice Krishna Iyer observed:

“Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal, even if the particular offence is committed with an unsuspecting mens. To take risks, in the name of very gullible dealers or very ignorant distributors, when the consequences may spell disaster on innocent victims, few or many, is legislative lackadaisical conduct, giving the wildest hostage to fortune. So it is that mens rea is excluded and the proof of actus [reus] is often enough. The story of small restaurateurs unwittingly vending milk, as is alleged here, is irrelevant to culpability.”58

Not only this, Justice Krishna Iyer has severely criticised the use of “plea bargaining,” “plea negotiation”, and “trading out”—in an overt or covert form—in the disposition of economic offences. Thus, in Murlidhar Meghraj Loya v. State of Maharashtra59 where the accused was sentenced to a fine of Rs 500 upon quickly pleading guilty to an offence of food adulteration, in Justice Krishna Iyer’s olfactory sense the whole process in the trial court strongly smacked of a tripartite consensual agreement reminiscent of the “plea-bargaining” procedures:

“It is idle to speculate on the virtue of negotiated settlements … in the United States, but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society’s interests by opposing society’s decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.”60

Justice Krishna Iyer has almost consistently exhibited a predisposition toward the doctrine of strict liability in the realm of socio-economic and other regulatory legislation61 and has tabooed subtle technicalities of law for protecting and furthering social welfare:

“Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefitting accused persons and defeating criminal statutes calculated to protect the public health and the nation’s wealth.”62

IV

This judicial engineering leads one to ask: How should our Supreme Court judges determine hard cases—not just in constitutional matters. After all, the Supreme Court should not be a mere switching station for efficient disposition of cases but rather a forum for the thoughtful and wise elucidation of national law and policy. By the time any non-constitutional case reaches the Supreme Court there are generally two fairly respectable views of what the law should be, how a statute should be interpreted, how a common law rule should be manicured. There seem to be three approaches, none of them mutually exclusive: First is the recognition that, given the democratic nature of our nation, the view of Parliament as to what is constitutional is worthy of the highest respect. A second view would be to accord certainty and predictability very high priorities in constitutional interpretation. Previous decisions of the Supreme Court, unless manifestly wrong, should be retained and in no event overturned on a slender majority. Changes should be evolved from the principles inherent in previous decisions. The judge should seek to apply not his own view of what the Constitution means, but rather that derived from the principles of construction and interpretation previously established. Thirdly, it may be argued that a judge’s task being to apply the Constitution and not the judicial decisions, he should always examine the Constitution afresh and, in the light of his own philosophy, develop his principles to interpret it.

All three approaches are defensible. Justice Krishna Iyer clearly prefers the third, as do some other judges. Most lawyers would consider the second approach most appropriate in that a judge must resist all temptations to implement his personal vision of the just society—except to the extent that his vision is consistent with the law as it evolves in response to social changes. This self-restraint is the very soul of judicial impartiality. Ideally, the losing party should feel that he is not the victim of the court, but simply the object of a process that is the same for all. The first approach of deference to Parliament is not one favoured by many judges. Most use a mixture of the second and third approaches, drawing on precedent when it suits them.63

Oftentimes, Justice Krishna Iyer has been relatively more deferential to the legislative intent: “A return to the rules of strict construction, when the purpose of the statute needs it, is desirable, especially with a view to give effect to the intention of the legislature.”64 Thus, he has gone into the travaux pre-paratoires—legislative background and objects of statutes dealing with such diverse issues as prohibition,65 rent control,66 contempt jurisprudence,67 labour-management relations,68 sentencing69—to discover the true objective of the enactment, but the overriding concern is his unabashed objective of a achieving a socially desirable result. “Until specific legislative mandates emerge from Parliament, the court may mould the old but not make the new law. ‘Interstitially, from the molar to the molecular’ is the limited legislative role of the court as Justice Holmes said… .”70 This approach, perhaps acknowledging the undemocratic character of judicial review, cautions the judge to exercise great self-restraint when confronted with opportunities to sit in judgment on the policy decisions of elected officials.

V

But for the passionate intensity of an unswerving commitment to a view-point that inspires him to resort to ornate phraseological flourishes (uncommon in conventional legal expression) and marshalling of abundant literature (even though a potpourri of unsynthesised disjecta membra), Justice Krishna Iyer’s reasoning would retain a vigour it will be difficult to controvert. Unfortunately, a virtual absence of any meaningful tradition of judicial biographies in India inhibits any search for shaping influences as to why a truly progressive, hauntingly compelling, courangeous and result-oriented judge—who is certainly not oblivious or averse to the great craft of precision71 and the vice of prolixity72—should find himself caught up in the web of these very infirmities? The few extant biographies, notably by Dr Vidya Dhar Mahajan, are mostly in the form of uncritical—and oftentimes sychophantic—adorations of the jurists involved.73 As such, they are not instructive enough in offering any meaningful insights into the outlook and philosophy of the judge on various facets of judicial process and decision-making.

On the contrary, in the United States, a tradition of such steadily growing up studies has progressed from simple biographies74 to studies relating to “role analysis” of judicial behaviour75 to highly-controversial studies penetrating the secrecy of the judicial process76 to a recent psychobiography of a distinguished judge, The Enigma of Felix Frankfurter (1981),77 by Professor H.N. Hirsch. American legal realism—which began to be influential in the 1920s and continues to dominate jurisprudential thinking to this day—highlighted that judges were people whose opinions reflected their individual passions, their group biases, their economic self-interest and their political preferences.78 For example, drawing heavily upon the psychodynamic theories of such analysts as Erik H. Erikson79 and Karen Horney,80 Professor Hirsch attempts to penetrate the psyche of one of the most interesting, complex and controversial personalities ever to grace the United States Supreme Court Bench, “perhaps the most influential jurist of the twentieth century”.81 If such a psychobiography were available for a judge like Justice Keishna Iyer—and he would be a fascinating subject for a psychobiography—we would perhaps be aided in understanding the “philosophy”, “writing style”, “value orientations” by knowing more about the man, the judge and the philosopher.

Though personally vehemently critical of judicial grandiloquence in any form,82 we would regard it equally unjust to let it alone become a barrier to recognising the great contributions—ideational as well as functional—of a truly sincere judge, for the lines between “illuminating judicial prose” and “a novel style of expression” are tenuous and often blurred. In defence to a judicial tenure—illustrious for its marked candour, bold creativity, correctional humanism, and a missionary zeal to do justice—the linguistic profligacies of Justice Krishna Iyer could be viewed by a grateful legal profession as a tolerable flirtation with glossary and words—a lyrical romance not being easily amenable to setling down to some cooler form of regard: “Umra to bitee hai ishak butan me Momin, ub aakhari wakt me kya khak Muslman honge.”

Regrettably, nevertheless, a counterproductive debate has engaged the wits of a distinguished judge of the Supreme Court, Mr Justice Tulzapurkar,83 and the author of a well-known commentary on the Constitution of India, Mr H.M. Seervai.84 Could the learned Justice, may one ask, not have voiced his admittedly understandable concerns to his “esteemed brother” Justice Krishna Iyer privately rather than using the embarrassing medium of a judicial opinion? What is even more revealing is that a discussion of such issues constitutes an ideé mâitresse of constitutional law, sometimes with the malicious pleasure of the self-righteous. The latest to intrude in this controversy in Mr Justice O. Chinnappa Reddy, presumably, in defence of his erstwhile colleague, which is equally regrettable.85

This apostolic apoplexy aside, it should be recognised en passant that judged by ideal standards, the writing style of a good number of Supreme Court judges is not the model of excellence. Apart from the intellectual limitations of particular judges, this malady is exacerbated because our judges are monstrously overworked, having little or no time to revise their draft opinions either to make them concise or linguistically flawless. (Pascal once apologised to one of his friends for writing a long letter, but pleaded lack of time to write a short one. Paradoxical though it may seem, it takes much longer to write a short piece.) More particularly, a virtual absence of written briefs and arguments—in preference to endless and oftentimes somnolent arguments86—has deprived the judges of any assistance in the preparation of their opinions—opinions that are as invulnerable and persuasive as they can be made by research, reflection, collaboration, criticism and accommodation. The case-load of the Supreme Court presents a truly formidable problem for the effective performance of that function. The ability to write precisely but powerfully is essential; a judge chained to his case-load cannot develop what Mr Justice Frankfurter aptly called “the spacious reflection so indispensable for wise judgment”.87

The very flamboyance of Justice Krishna Iyer’s style may obscure his merit and his significance. Spurning judicial caution, he drafted his pronunciamentos with grand broad strokes, sometimes with so relatively little regard for the case at hand that he could be accounted something less or even something other than a judge. Justice Krishna Iyer was the fighting-crusading lawyer, contentious to a fault. Thus, impatience with social injustices invariably led him to infuse his judgments with lavish obiter dicta, presumably, to sensitise the government into taking remedial steps, either for the amelioration of the conditions of prisoners,88 juvenile delinquents,89 and deserted wives,90 enactment of a nationwide no-fault scheme,91 defining and further elucidating what is an “industry,”92 victim reparation,93 eradication of corruption,94 adoption of class actions,95 independence of the judiciary,96 rent control,97 introduction of non-judicial modes of dispute settlement,98 electoral law reform,99 effective access to justice;100 and the need to explore new techniques for solving and dissolving the perpetual crises in human relations—whether those techniques be found in law, social welfare programmes, economics, criminology,101 or transcendental meditation.102 The sweep of his concerns is thus immense.

Despite the fact that on the whole the work of the Supreme Court is commendably done, unfortunate and unintended dicta can oftentimes spawn regrettable results in the lower courts or lead to uncertainty in the planning of the public and private sectors. To some extent this malady is controlled by the canon of precedent which pays less heed to unnecessary comments of judges than the actual holdings of cases. But in the Indian context, strictly speaking, the technique raises problems in that some Supreme Court obiter dicta may bind lower courts. But Justice Krishna Iyer’s deep humanism and irrepressible desire to do justice overrode such considerations.

VI

Within the confining brevity of the foregoing fragmented sampling the extraordinarily variegated contribution of Justice Krishna Iyer can hardly by encapsulated, requiring as it does a full book-length treatment. But one thing is clear. Justice Krishna Iyer rejected the austerity and detachment traditionally imposed upon a judge; he never became a prisoner of dogma but gave legal vitality to new approaches over the widest spectrum of social ills. Thus, an activist sense of responsibility for the goals of laws and a proclivity to play policy-maker have been the hallmarks in the judicial universe of Justice Krishna Iyer. His justification is that judicial activism strengthens Indian democracy, particularly when the courts are spurred by the conviction that legislative processes and administrative agencies have failed to bring society closer to the meaning of its constitutional values. The magnitude of his contribution to the law through the human and perceptive exegesis of the text of the Constitution is enormous, enduring and widely acknowledged. Moreover, the jurist is an accomplished scholar and one cannot help but admire his judicial statesmanship (he rarely wrote a dissent), his depth of concern for humanity, his broad social vision, his eclectic knowledge of law, literature, history, philosophy, and the social sciences, and his Solomonic wisdom.103


Note: This Article was first published in Supreme Court Cases (1981) 4 SCC J-38.It has been reproduced with the kind permission of Eastern Book Company.

* B.A., M.A., LL.B., LL.M. (Rajasthan); LL.M., S.J.D. (Harvard); Faculty of Law, University of New South Wales, Kensington (Sydney), N.S.W. 2033, Australia. EDITOR’S NOTE: A former editor of LAWASIA, Professor Sharma is currently spending his sabbatical at Harvard Law School and at the law firm of Hale and Dorr in Boston, Mass., U.S.A.

1 Quoted in O. KIRCHHEIMER, POLITICAL JUSTICE 175 (1961).

2 The number 300 is approximate and excludes Justice Krishna Iyer’s judgments delivered as a judge of the High Court of Kerala. His out-of-court pronouncements and writings have been equally prodigious. See, e.g., V. KRISHNA IYER, LAW AND THE PEOPLE: A COLLECTION OF ESSAYS (1972), V. KRISHNA IYER, LAW, FREEDOM AND CHANGE (1975); V. KRISHNA IYER, JURISPRUDENCE AND JURISCONSCIENCE A LA GANDHI (1976); V. KRISHNA IYER, LAW AND SOCIAL CHANGE: AN OVERVIEW (1978); V. KRISHNA IYER, Social Justice and the Handicapped Humans, 2 ACADEMY L. REV. 1 (1978); V. KRISHNA IYER, THE INTEGRAL YOGA OF PUBLIC LAW AND DEVELOPMENT IN THE CONTEXT OF INDIA (1979); V. KRISHNA IYER, OF LAW AND JUSTICE (1979); V. KRISHNA IYER, Corporate Responsibility and Social Justice, 15 CIVIL & MILITARY L.J. 263 (1979); V. KRISHNA IYER, JUSTICE AND BEYOND (1980); V. KRISHNA IYER, PERSPECTIVES IN CRIMINOLOGY, LAW AND SOCIAL CHANGE (1980); V. KRISHNA IYER, SOME HALF-HIDDEN ASPECTS OF INDIAN SOCIAL JUSTICE (1980).

3 Cardozo, Our Lady of the Common Law, 13 ST. JOHNS L. Rev. 231, 232 (1937), in B. CARDOZO, SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO 87, 88 (M. Hall Ed. 1947).

4 Unlike most of his colleagues who had spent their entire public life in the judiciary, Justice Krishna Iyer came to the Court after a long and distinguished career as a legislator and politician. And it was this background which influenced his judicial career the most. The years in the legislative branch brought with them a general restlessness with the traditional judicial approach to decision-making.

5 The Lord Denning Controversy, ENCOUNTER 54 (Vol. LVI Nos. 2-3, Feb.-Mar. 1981). See also A. DENNING, THE DISCIPLINE OF LAW, (1979); A. DENNING, THE DUE PROCESS OF LAW (1980); A Denning, THE FAMILY STORY (1981).

6 See generally W. DOUGLAS, THE COURT YEARS: 1939-1975 (1980); J. SIMON, INDEPENDENT JOURNEY: THE LIFE OF WILLIAM O. DOUGLAS 436 (1980).

7 State of Haryana v. Darshana Devi(1979) 2 SCC 236.

8 Id., at 237.

9 Rajasthan State Road Transport Corporation v. Narain Shanker(1980) 2 SCC 180.

10 Id.

11 Maneka Gandhi v. Union of India(1978) 1 SCC 248.

12 A.K. Gopalan v. State of MadrasAIR 1950 SC 27.

13 In an Article published in 1972, K.M. Sharma, “Law and Order” and the Rights of the Accused in the United States and India: A General Framework for Comparison, 21 Buffalo L. Rev. 361, 381-86, 387-93 (1972), while arguing that Gopalan was unduly Procrustean and anticipating the Maneka formulation, it was not envisioned that the Supreme Court would compose such an expansive obituary of Gopalan, as has been the case now.

14 R.C. Cooper v. Union of India(1970) 1 SCC 248.

15 See K.M. Sharma, supra, note 14, at 386 n. 111.

16 Mr Justice Chandrachud (now Chief Justice) is cognisant of this dilemma as is evident from his cautionary statement in Maneka Gandhi:

“… I am inclined to think that the presence of the due process clause in the 5th and 14th Amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. The content which has been meaningfully and imaginatively poured into “due process of law,” may, in my view, constitute an important point of distinction between the American Constitution and ours which studiously avoided the use of that expression.”

Id., at 327. Therefore, “without the due process clause,” observed Justice Chandrachud, “I prefer … a decision directly in point, All India Bank Employees’ Association, … AIR 1962 SC 171, in which this Court rejected … that the freedom to form associations or unions contained in Article 19(1)(c) carried with it the right that a workers’ union could do all that was necessary to make that right effective …. One right leading to another and that another to still another, and so on, was described in [this] decision as productive of a ‘grotesque result’.” Id.

17 Hussainara Khatoon v. State of Bihar [No. 1], (1980) 1 SCC 81 (Bhagwati, J.); Hussainara Khatoon v. State of Bihar [No. 1], (1980) 1 SCC 91 (Bhagwati, J.).

18 M.H. Hoskot v. State of Maharashtra(1978) 3 SCC 544 (State appointed counsel for prisoner); cf. Sunil Batra v. Delhi Administration (I)(1978) 4 SCC 494, 564Hussainara Khatoon v. State of Bihar [No. 3](1980) 1 SCC 93 (Bhagwati, J.); Gopalanachari v. State of Kerala1980 Supp SCC 649.

19 Moti Ram v. State of Madhya Pradesh(1978) 4 SCC 47, 50; Mantoo Majumdar v. State of Bihar(1980) 2 SCC 406, 409.

20 Sita Ram v. State of Uttar Pradesh(1979) 2 SCC 656, 669. But see the very persuasive dissent of Kailasam, J., id., at 676.

21 Jolly George Varghese v. Bank of Cochin(1980) 2 SCC 360, 367.

22 Sunil Batra v. Delhi Administration (I)(1978) 4 SCC 494, 518. See also Babu Singh v. State of Uttar Pradesh(1978) 1 SCC 579Gudikanti Narasimhulu v. Public Prosecutor(1978) 1 SCC 240.

23 Sunil Batra v. Delhi Administration (I)(1978) 4 SCC 494, 567:

“Prison laws, now in bad shape, need rehabilitation; prison staff, soaked in the Raj past, need reorientation; prison houses and practices, a hangover of the die-hard retributive ethos, need reconstruction; prisoners, these noiseless, voiceless human heaps cry for therapeutic technology; and prison justice, after long jurisprudential gestation, must now be re-born through judicial midwifery, if need be. No longer can the Constitution be curtained off from the incarcerated community since pervasive social justice is a fighting faith with Indian humanity.”

24 Charles Sobraj v. Superintendent, Central Jail, Tihar(1978) 4 SCC 104, 107.

25 Id.

26 Id., at 107.

27 Id., at 109.

28 See, e.g., Dilbag Singh v. State of Punjab(1979) 2 SCC 103, 105; Sunil Batra v. Delhi Administration [No. 2](1980) 3 SCC 488, 499-500, 506-07.

29 See, e.g., Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, 537:

“The Preamble sets the humane tone and temper of the Founding Document and highlights justice, equality and the dignity of the individual. Article 14 interdicts arbitrary treatment, discriminatory dealings and capricious cruelty. Article 19 proscribes restrictions on free movement unless in the interest of the general public. Article 21 after the landmark case in Maneka Gandhi …, followed by Sunil Batra … is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or processual.”

30 Madhu Limaye v. Superintendent, Tihar Jail, Delhi(1975) 1 SCC 525 (dicta).

31 Lingala Vijay Kumar v. Public Prosecutor, Andhra Pradesh(1978) 4 SCC 196, 203-04 (need to keep young accused separate from sadistic adults stressed and directed that he be treated as a B class prisoner); Sunil Batra v. Delhi Administration (II), (1980) 3 SCC 488, 511 (“[i]t is inhuman and unreasonable to throw young boys to the sex-starved adult prisoners or to run menial jobs for the affluent or tough prisoners”).

32 Sunil Batra v. Delhi Administration (I)(1978) 4 SCC 494, 562; Sunil Batra v. Delhi Administration (II)(1980) 3 SCC 488, 512; Kishore Singh v. State of Rajasthan(1981) 1 SCC 503.

33 Id.

34 (1980) 3 SCC at 510-11.

35 Id.

36 Sunil Batra v. Delhi Administration (II)(1980) 3 SCC 488.

“[N]o prisoner can be personally subjected to deprivations not necessitated by … incarceration …. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.”

Id. at 509. See also Sunil Batra v. Delhi Administration (I), (1978) 4 SCC 494, 519, 563. The right of a prisoner to have his work published if it does not violate prison discipline was upheld in State of Maharashtra v. Prabhakar Pandurang SanzgiriAIR 1966 SC 424.

37 (1980) 3 SCC at 512.

38 (1980) 3 SCC 526.

39 Id., at 538.

40 Id., at 536.

41 Id., at 539.

42 This is true not only in the “prison justice” area, but in the name of “affirmative action”, “remedial jurisprudence”, and “processual justice”, Justice Krishna Iyer’s decisions have been somewhat unconventional in securing an enforcement of the Court’s mandate. See, e.g., Municipality Council, Ratlam v. Vardichand, (1980) 4 SCC 162, 173 (ordering the Ratlam Municipality to construct a large number of latrines in three months); State of Kerala v. T.P. Roshana(1979) 1 SCC 572 (ordering the admission of thirty additional students in a medical college on an ad hoc basis).

43 Charles Sobraj v. Superintendent, Central Jail, Tihar(1978) 4 SCC 104, 107.

44 See, e.g., Ediga Anamma v. State of Andhra Pradesh(1974) 4 SCC 443Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646Dalbir Singh v. State of Punjab(1979) 3 SCC 745. A full Bench of the Supreme Court in Bachan Singh v. State of Punjab(1980) 2 SCC 684, recently upheld the constitutionality of the death penalty, thus overruling such portions of these judgments which relate to the unconstitutionality of capital punishement. See also V. KRISHNA IYER, Death Penalty: An Unmitigated Evil, in PERSPECTIVES IN CRIMINOLOGY, LAW AND SOCIAL CHANGE 110 (1980). For a perceptive analysis of Ediga Anamma, supra, and related cases involving death penalty and Justice Krishna Iyer’s efforts to avoid death sentence through judicial fiat see Blackshield, Capital Punishment in India, 21 J. IND. L INST. 137 (1979).

The animating articulation of Krishna Iyer’s views against capital punishment may obscure the fact that for some exceptional situations (viz., antisocial offences, white collar offences and die-hard incorrigible murders) he will tolerate the retention of the death penalty, as is evident from his observations in Rajendra Prasad v. State of Uttar Pradesh(1979) 3 SCC 646, 670-71. See also Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443 and Bishan Dass v. State of Punjab(1975) 3 SCC 700, 702 (where the crime is “cruel and inhuman” and the “consequential deaths dastardly and pathetic” a death sentence may be called for). These are, however, the personal views of Justice Krishna Iyer and at present do not constitute the law in India.

45 At times, in search of extenuating circumstances, Justice Krishna Iyer has resorted to rather inconsistent rationalisations. Thus, in one rape case, Phul Singh v. State of Haryana(1979) 4 SCC 413, while reducing the imprisonment from five to two years because of contrition and forgiveness on the part of the accused and the prosecutrix’s family, he scapegoats—to borrow his phrase—not the “libidinous brahmachari” but the present-day decadent social environment. He is hopeful that the “aphrodisiac overflow” and “erotic aberration” of this “philanderer of 22 … overpowered by sex stress in excess” will wither away as a result of meditational therapy rather than punitive sanctions. Id. at 413-14.

Justice Krishna Iyer used the same kind of astonishing reasoning in commuting the death sentence of an accused (Kunjukunju) even though the fact-situation involved a calculated, preplanned brutalising murder of his wife and two children to facilitate his extramarital liasion. Rajendra Prasad v. State of Uttar Pradesh(1979) 3 SCC 646, 684-85.

Similarly, in V.C. Rangadurai v. D. Gopalan(1979) 1 SCC 308, involving a case of grave professional misconduct by a lawyer who would have been disbarred by the State Bar Council (instead of suspension from practice for six years) but for his young age—and whose suspension was further reduced by the Bar Council of India to one year —, Justice Krishna Iyer reinstated his right to practise on an “understanding to serve the poor” by participating in a legal aid scheme operating in Tamil Nadu. Apart from the disservice such an unrealistically lenient view does by way of deterring professional misconduct and improving the public trust in the legal profession, such a direction was statutorily suspect. Thus, the anxieties and concerns expressed by Mr Justice Sen (id., at 320-21) are preferable to the misplaced sympathy of Justice Krishna Iyer.

46 See, e.g., Som Prakash v. State of Delhi(1974) 4 SCC 84, 90-91; Balkrishna Chhaganlal Soni v. State of West Bengal(1974) 3 SCC 567, 568, 572-73. In these cases, dealing with white collar offences, he refused to interfere with the punishment given by the lower courts. Similarly, in Suresh Chandra v. State of Gujarat(1976) 1 SCC 654, involving a small official in a Sales Tax department who was trapped into taking Rs 100 bribe and sentenced under Section 5(2) of the Prevention of Corruption Act, Justice Krishna Iyer observed: “The watershed of pollution in the administration cannot be permitted to be crossed by misconceived compassion or high-level executive indifference.” Id. at 654. Further, “[a]lthough the crime is of the white-collar brand and deserves no sympathy, it is a matter for consideration … whether the (accused) should not be considered for parole after he has served a fair portion of his sentence.” Id. at 655. To us the Rangadurai situation (supra note 46) looks far more serious in the area of corruption (involved as it did a lawyer) deserving of severe punishment than the situation of Suresh Chandra (supra) involving a petty clerk. It is hard to explain these contradictions except to suggest that Krishna Iyer has tried to temper justice with mercy whenever it has been possible to do so in terms of his own value judgments.

47 Maru Ram v. Union of India(1981) 1 SCC 107, 135-36.

48 Id.

49 Id. See also Ved Prakash v. State of Haryana(1981) 1 SCC 447.

50 See note 47, supra.

51 (1974) 1 SCC 167.

52 Id., at 176. This is rather overstated.

53 Id., quoting from 35 AM. JUR. Food § 77 (1967):

“The distribution of impure or adulterated food for consumption is an act perilous to human life and health, hence, a dangerous act, and cannot be made innocent and harmless by the want of knowledge or by the good faith of the seller; it is the act itself, not the intent, that determines the guilt, and the actual harm to the public is the same in one case as in the other. Thus, the seller of food is under the duty of ascertaining at his peril whether the article of food conforms to the standard fixed by statute or ordinance, unless such statutes or ordinances, expressly or by implication, make intent.”

54 (1974) 1 SCC at 176, quoting Lord Wright in McLeod v. Buchanan, (1940) 2 All ER 179, 186 (HL).

55 This question is explored by us elsewhere in a forthcoming article.

56 (1977) 1 SCC 300.

57 Id., at 303.

58 (1977) 1 SCC 300, 304-05.

59 (1976) 3 SCC 684.

60 Id. at 688. This criticism is again repeated in Kisan Trimbak v. State of Maharashtra(1977) 1 SCC 300, 303-04.

61 The reason is obvious. As the LAW COMMISSION OF INDIA, FORTY-SEVENTH REPORT ON THE TRIAL AND PUNISHMENT OF SOCIAL AND ECONOMIC OFFENCES 2 (1972), of which Justice Krishna Iyer was a member, observed the modus operandi, the nature and the consequences of these crimes are such that an inquiry of mens rea is rendered redundant. This approach is, of course, contrary to the trend of law evidenced recently in many Anglo-Saxon jurisdictions. See e.g., G. WILLIAMS, TEXTBOOK OF CRIMINAL LAW 905-24 (1978).

62 (1976) 3 SCC at 686.

63 Justice Krishna Iyer is no exception to this precedential pragmatism. See, e.g., Life Insurance Corporation of India v. D.J. Bahadur(1981) 1 SCC 315: “The catena of cases we have briefly catalogued discloses an unbroken stream of case-law binding on this Court, the ratio whereof, even otherwise, commends itself to us.” Id., at 348.

64 Authorised Officer, Thanjavur v. S. Naganatha Ayyar(1979) 3 SCC 466, 473; see also Avinder Singh v. State of Punjab(1979) 1 SCC 137Carew and Company v. Union of India(1975) 2 SCC 791, 802-03.

65 See, e.g., P.N. Kaushal v. Union of India, (1978) 3 SCC 558.

66 See, e.g., Sant Ram v. Rajinder Lal(1979) 2 SCC 274.

67 Union of India v. Satish Chandra(1980) 2 SCC 144; In re S. Mulgaokar, (1978) 3 SCC 339, 349-50; see also Baradakanta Mishra v. Registrar of Orissa High Court(1974) 1 SCC 374, 401 (concurring).

68 Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832, 846-47 (history of the Payment of Bonus Act, 1965); Bangalore Water Supply and Sewerage Board v. A. Rajappa(1978) 2 SCC 213, 282-83 and Life Insurance Corporation of India v. D.J. Bahadur(1981) 1 SCC 315, 337-38, 349-54 (objectives of the Industrial Disputes Act, 1947, reviewed); Gujarat Steel Tubes Ltd. v. Mazoor Sabha(1980) 2 SCC 593, 628-29, 632-35 (legislative background of Section 11-A of the Industrial Disputes Act, 1947, examined).

69 Maru Ram v. Union of India, (1981) 1 SCC 107, 120-22.

70 Gujarat Steel Tubes Ltd. v. Mazdoor Sabha(1980) 2 SCC 593, 614. See also id., at 629-30: “It is increasingly important for developing countries, where legislatie transformation of the economic order is an urgent item on the national agenda, to have the judiciary play a meaningful role in the constitutional revolution without fretting out flaws in the draftsman, once the object and effect are plain. Judges may not be too ‘anglophonic’ lest the system fail.”

71 Carew and Company Ltd. v. Union of India(1975) 2 SCC 791, 801 (recommends the use of Brandeis brief, a device recognised by the United States Supreme Court to ensure that the Court is adequately informed about the relevant non-legal criteria of choice: the Brandeis brief originated in the argument presented by counsel, Louis Brandeis (a Supreme Court Justice, 1916-1939), to the Supreme Court in Muller v. Oregon, 207 US 412 (1908)—Brandeis, who was arguing for the constitutionality of a statute which prohibited more than a ten-hour working day for women in factories and laundries, as well as making submissions on the relevant legal authorities, submitted a brief replete with citations of domestic and foreign reports, committees and legislation, the opinions of experts, plus an analysis of the likely consequences of a decision either way); Sunil Batra v. Delhi Administration [No. 1](1978) 4 SCC 494, 524 (need of Brandeis briefs stressed to understand prison tensions); Chitan J. Vaswani v. State of West Bengal, (1975) 2 SCC 829 (deplores poor draftsmanship in the statute relating to suppression of immoral traffic in women and girls); Murlidhar Meghraj Loya v. State of Maharashtra(1976) 3 SCC 684, 687-88 (deplores “the clumsy draftsmanship displayed in a statute [Prevention of Food Adulteration] which affects the common man” and lamenting that unfortunately “easy comprehensibility and simplicity for the laity are discarded sometimes through over-sophisticated scholarship in … drawing up legislative Bills” stresses that a “new orientation for drafting methodology adopting directness of language and avoiding involved reference and obscurity is overdue”). See also State of Madhya Pradesh v. Shri Ram Ram Raghubir(1979) 4 SCC 686, 689; Aluminium Corporation of India v. Union of India, (1975) 2 SCC 472, 477.

72 See, e.g., Babubhai v. Nandlal(1974) 2 SCC 706, 722; Gujarat Steel Tubes Ltd. v. Mazdoor Sabha(1980) 2 SCC 593, 604-05:

“Mercifully, counsel abbreviated their oral arguments into an eight-day exercise, sparing us the sparring marathon of twenty-eight laborious days, through which the case stretched out in the High Court [of Gujarat].

Orality ad libitum may be the genius of Victorian era advocacy but in our ‘needy’ Republic with crowded dockets, forensic brevity is a necessity. The Bench and the Bar must fabricate a new shorthand form of court methodology which will do justice to the pockets of the poor who seek … justice and to the limited judicial hours humanely available to the court if the delivery system of justice is not to suffer obsolescence.”

See also P.N. Eswara Iyer v. Registrar, Supreme Court of India(1980) 4 SCC 680, where Justice Krishna Iyer, sustaining the validity of an amended rule of the Supreme Court which excluded oral hearing in relation to a review application, observed that an oral hearing is not an essential requirement for all types of cases.

73 V. MAHAJAN, CHIEF JUSTICE GAJENDRAGADKAR (1966); V. MAHAJAN, CHIEF JUSTICE K. SUBBA RAO (1969); V. MAHAJAN, CHIEF JUSTICE MEHR CHAND MAHAJAN (1969). See, likewise, M. HIDAYATULLAH, MY OWN BOSWELL (1980).

74 It is not attempted to catalogue here all the judicial biographies published. That would be a formidable task, indeed. However, see, e.g., THE JUSTICES OF THE UNITED STATES SUPREME COURT: THEIR LIVES AND MAJOR OPINIONS (Vols. 1-4, 1789-1969, L. FRIEDMAN & F. Israel Eds. 1969; Vol. 5, 1969-1978, L. Friedman Ed. 1978). Some recently published biographies include F. STITES, JOHN MARSHALL: DEFENDER OF THE CONSTITUTION (1981); M. UROFSKY, LOUIS D. BRANDES AND THE PROGRESSIVE TRADITION (1981); J. Simon, supra note 6.

75 See, e.g., G. SCHUBERT, QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR (1959); JUDICIAL DECISION-MAKING (G. Schubert Ed. 1963); G. SCHUBERT, THE JUDICIAL MIND (1965); G. SCHUBERT JUDICIAL POLICY-MAKING (1965); C. PRITCHETT, CIVIL LIBERTIES AND THE VINSON COURT (1954); Crossman, Role-Playing and the Analysis of Judicial Behavior: The Case of Mr Justice Frankfurter, 11 J. Pub. L. 285 (1962); Grossman, Dissenting Blocks on the Warren Court: A Study in Judicial Role Behavior, 30 J. POL. 1068 (1968); HOWARD, Role Perceptions and Behavior in Three U.S. Court of Appeals, 39 J. POL. 916 (1977); Gibson, Judges’ Role Orientations, Attitudes, and Decisions, 72 Am. POL. SCI. REV. 911 (1978).

76 See, e.g., R. WOODWARD & S. ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT (1979); B. Murphy, Elements of Extrajudicial Strategy: A Look at the Political Roles of Justices Brandeis and Frankfurter, 69 Geo. L.J. 101 (1980); B. MURPHY, JUSTICES AS POLITICIANS: THE EXTRA JUDICIAL ACTIVITIES OF LOUIS D. BRANDEIS AND FELIX FRANKFURTER (forthcoming in 1981 or 1982); D. PROVINE, CASE SELECTION IN THE UNITED STATES SUPREME COURT (1980).

77 H. HIRSCH, THE ENIGMA OF FELIX FRANKFURTER (1981).

78 See, e.g., W. RUMBLE, AMERICAN LEGAL REALISM (1968).

79 E. Erikson, The Problem of Ego Identity, 4 J. AM. PSYCHOANALYTIC ASS’N 56 (1956); E. ERIKSON, CHILDHOOD AND SOCIETY (1963). Erikson applied his psychological interpretations to a political biography of Mahatma Gandhi, E. ERIKSON, GANDHI’S TRUTH (1969), with impressive success.

80 K. HORNEY, NEUROSIS AND HUMAN GROWTH (1950).

81 H. HIRSCH, supra note 78, at 3.

82 K.M. Sharma, Judicial Grandiloquence in India: Would Fewer Words and Shorter Oral Arguments Make for Better Judgments, 4 LAWASIA 192 (1973).

83 In Manohar Nathurao Samarth v. Marotrao(1979) 4 SCC 93, 101, Justice Tulzapurkar criticised the writing style and the contents (expressing personal theories and views) of Justice Krishna Iyer: “[P]refaces and exordial exercises, perorations and sermons as also theses and philosophies (political or social), whether couched in flowery language or language that needs simplification, have ordinarily no proper place in judicial pronouncements [and] day in and day out indulgence in these in almost every judgment, irrespective of whether the subject or the context or the occasion demands it or not, … becomes indefensible ….”Id., 107. This prompted the latter’s retort in Organo Chemical Industries v. Union of India, (1979) 4 SCC 573, 586-87.

84 H. SEERVAI, CONSTITUTIONAL LAW OF INDIA vii, 1871-80, 2026-29 (2d Edn. 1979). For an oblique reference to Justice Krishna Iyer’s colourful writing style and literary flourishes, see also Blackshield, supra, note 45, at 145-46.

85 O. Chinnappa Reddy, Foreword to V. KRISHNA IYER, JUSTICE AND BEYOND 4 (1980). For a spirited defence of Krishna Iyer’s writing style, see Nambyar, Mr Jethmalani and “Judicial Gobbledygook,” (1974) 1 SUPREME COURT CASES [Jour] 68.

86 See K.M. Sharma, supra, note 83.

87 Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 CORN.L.Q. 499, 504 (1928). Cf. Justice Krishna Iyer’s perceptive dicta in Life Insurance Corporation of India v. D.J. Bahadur(1981) 1 SCC 315, 326:

“[W}hen important issues demand the Court’s collective judgment, an informed meeting of instructed minds … is a sine qua non. But [a] torrent of litigation flooding the Court downs the judges in the daily drudgery of accumulated dockets. To gain leisure for fundamental reflections with some respite from paper-logged existence and supportive research from trained law clerks is a ‘consummation devoutly to be wished’ if the final Court is to fulfil its tryst with the Constitution and the country.”

88 Moti Ram v. State of Madhya Pradesh(1978) 4 SCC 47, 57 (urges revision of bail laws); Sunil Batra v. Delhi Administration [No. 1](1978) 4 SCC 494, 564-67.

89 Ram Prasad Sahu v. State of Bihar(1980) 1 SCC 74, 76.

90 See, e.g., Bai Tahira v. Ali Hussain Fidaalli Chothia(1979) 2 SCC 316Ramesh Chander v. Veena Kaushal(1978) 4 SCC 70.

91 State of Haryana v. Darshana Devi, (1979) 2 SCC 236, 238.

92 Bangalore Water Supply and Sewerage Board v. A. Rajappa(1978) 2 SCC 213, 229: “This obiter exercise is in discharge of the Court[‘s] obligation to inform the community in our developing country where to look for the faults in the legal order and how to take meaningful corrective measures. The [c]ourts too have a constituency—the nation—and a manifesto—the Constitution. That is the validation of this divagation.” See also Life Insurance Corporation of India v. D.J. Bahadur, (1981) 1 SCC 315, 334-35.

93 See, e.g., Rattan Singh v. State of Punjab, (1979) 4 SCC 719, 721.

94 See, e.g., Mohammad Aslam v. State of Uttar Pradesh, (1976) 4 SCC 283, 287.

95 “Access to justice” has been the credo of Justice Krishna Iyer’s constitutional faith, explaining his recalcitrance toward a narrowing of the requirements of “standing”, “locus standi”, “proper party plaintiff” and “aggrieved person” through a restrictive interpretation of Articles 32 and 136. See generally Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India, (1981) 1 SCC 246, 281; Fertilizer Corporation Kamgar Union v. Union of India(1981) 1 SCC 568, 581. It is not disputed that a person who has a real stake in the outcome of a litigation or a proceeding should not be denied access to justice. But the Court should proceed with a considerable degree of circumspection toward liberalising the requirement of “standing”; otherwise, our already clogged dockets will be swelled beyond belief. Justice Krishna Iyer’s view in Bar Council of Maharashtra v. M.V. Dabholkar(1975) 2 SCC 702, 715, 720, is more idealistic: “The possible apprehension that widening of legal standing with a public connotation may unlose a flood of litigation which may overwhelm the Judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system.” [However, five years later, in Baleshwar Dass v. State of U.P., (1980) 4 SCC 226, 230, we encounter a diametrically inconsistent sentiment: “This case illustrates the thesis that unlimited jurisdiction under Article 136 self-defeatingly attracts unlimited litigation which, in turn, clogs up and slows down to zero speed the flow of ultimate decisions ….”] The empirical experience from England, Australia and the United States which Justice Krishna Iyer invokes has been just to the contrary and in any way is of little relevance to Indian conditions. There is thus great merit in the observation of Mr Justice Pathak in P.S.R. Sadhanantham v. Arunachalam(1980) 3 SCC 141, that the widest conceivable range of discretionary jurisdiction conferred by Article 136 on the Supreme Court to “grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India” is nevertheless subject to a limitation “in-built into the jurisdiction of the Court [which] flows from the nature and character of the case intended to be brought before the Court [and] requires compliance despite the apparent plenitude of power vested in the Court [under Article 136].” Id. at 149. Justice Krishna Iyer is equally generous in enlarging the doctrine of “State action.” See, e.g., Som Prakash Rekhi v. Union of India(1981) 1 SCC 449 (Bharat Petroleum Corporation Limited is a “State” within Article 12 of the Constitution).

96 See, e.g., Union of India v. Sankalchand(1977) 4 SCC 193, 251.

97 Busching Schmitz v. Menghani(1977) 2 SCC 835, 839.

98 Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832, 851, 852 (recommends “concilliation” and “mediation”); Gujarat Steel Tubes Ltd. v. Mazdoor Sabha(1980) 2 SCC 593, 613 (“overjudicialised” and “under-professionalised” industrial law needs to be replaced by “specialised processual expertise and agencies” defating as it does effective and equitable solution of labour-management disputes), see also id. at 653; V. KRISHNA IYER, PERSPECTIVES IN CRIMINOLOGY, LAW AND SOCIAL CHANGE 102-03 (1980); V. KRISHNA IYER, Nyaya Panchayats in Retrospect and Prospect, in OF LAW AND LIFE 116 (1979).

99 Jugal Kishore Patnaik v. Ratnakar Mohanty(1977) 1 SCC 567, 573 (concurring) (dicta); see also Mohinder Singh v. Chief Election Commissioner, (1978) 1 SCC 405.

1 Central Coal Fields v. Jaiswal Coal Co.1980 Supp SCC 471, 473 (court fees should have correlation with expenditure on the administration of civil justice and should not result in denial of effective access to justice and equality before law in terms of Articles 39-A and 14 of the Constitution, respectively); S.K. Sen v. State of Bihar, (1975) 3 SCC 774, 777 (“processual punctilliousness” condemned as the end-product of equity and good conscience stood sacrificed). See also note 96, supra.

2 Mohammed Giasuddin v. State of Andhra Pradesh(1977) 3 SCC 287Inder Singh v. Delhi Administration(1978) 4 SCC 161Lingala Vijay Kumar v. Public Prosecutor, Andhra Pradesh(1978) 4 SCC 196.

3 See, e.g., Hiralal Mallick v. State of Bihar(1977) 4 SCC 44, 53-54; Sunil Batra v. Delhi Administration [No. 2](1980) 3 SCC 488, 520, 524; Maru Ram v. Union of India(1981) 1 SCC 107, 139, 141; Rajendra Prasad v. State of Uttar Pradesh(1979) 3 SCC 646, 687; Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, 296, 297.

4 Justice Krishna Iyer has faithfully followed Judge Learned Hand’s prescription “that it is a important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject”. L. HAND, Sources of Tolerance, in THE SPIRIT OF LIBERTY 81 (3rd. Edn. Dilliard 1960). Justice Krishna Iyer would indeed considerably enlarge the list, to include Buddha and Mahavira, Manu and Kautilya, Gandhi and Nehru—as is richly borne out by his judgments.

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while allowing the present writ petition moved by a transgender against the declaration of her self identified gender in official documents, reiterated the observations made in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020.

 Brief Facts

Facts of the case are enlisted objectively hereunder;

  1. That the petitioner claims to be a transgender; whose gender does not match with the gender assigned to her biologically by birth.
  2. That the birth certificate of the petitioner declares her as a male and names her as ‘Clafid Claudy Lobo’
  3. That at a very young age, the petitioner identified herself as a female and lately underwent a gender reassignment surgery on 26-07-2018, at Namaha Hospital, under the medical supervision of Dr Umang Kothari.
  4. That the petitioner thereafter changed her name from ‘Clafid Claudy Lobo’ to ‘Christina Lobo’ by executing an affidavit dated 31-10-2019.
  5. That the petitioner holds an AADHAAR card and a passport with the aforementioned name and gender female.
  6. That the respondent authorities have denied acknowledging the gender identity of the petitioner and further rejected the claim of changing the personal details over the university and pre-university certificates.
  7. That the petitioner has sought for a writ in the nature of mandamus directing respondents 2 and 3; the Department of Pre-University Education and the Karnataka Secondary Education Examination Board, Bengaluru to issue a revised certificate in addition to the setting aside of order passed by respondent 4; Central Board of Secondary Education, Chennai and issue revised CBSE mark sheet showing her name as ‘Christina Lobo’. Further, the petitioner prays to issue a writ of mandamus against respondent 6 and 7; Rajiv Gandhi University of Health Sciences and Father Muller Medical College, Mangalore to change her name and gender in the MBBS mark sheet and thereby grant revised educational records.

 Contentions

It was argued by the counsel for respondent 3, N.K. Ramesh, that the Transgender Persons (Protection of Rights) Act, 2019 has been promulgated by the Parliament on 05-12-2019 and as per the provisions of the said Act, a Transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person. Further, there is no provision in ‘Examination Bye-laws’ of the Board to effect change in gender and name of the students and therefore, the order passed by respondent 3 cannot be faulted with.

The counsel for the petitioner placing reliance on NALSA v. Union of India, (2014) 5 SCC 438, emphasized transgender person rights decide their self identified gender as recognized by the Supreme Court and the direction issued to the Central and State Governments granting legal recognition to the same, without fail. As per the facts of the present case, the petitioner has identified herself as a female and also undergone psychological evaluation/gender reassessment surgery. There seems no reason for denial to the petitioner’s claim as the legal position stands clear in the light of the aforementioned judgment. It was further submitted that under Article 21 of the Constitution, such denial shall be arbitrary and in violation of the Fundamental Rights enshrined under the Constitution.

 Observation

The Court, pursuant to its decision, cited the following cases;

  • National Legal Services Authority v. Union of India, (2014) 5 SCC 438, “The recognition of one’s gender identity lies at the heart of the fundamental right to dignity.Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
  • Anuj Garg v. Hotel Assn,  of  India, (2008) 3 SCC 1, “(…) Self- determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed  under Article 21 of the Constitution of ”

With respect to the legal recognition of third gender/transgender, the Court remarked;

  • The self-identified gender can be either male or female or third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example, Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a ‘third gender’, apart from male and female.”
  • Moreover, the Court, answering contention of the respondent related to application for certificate of identity, cited, sub-rule (3) of the Transgender Persons(Protection of Rights) Rules, 2020 which provides for application for issue of a certificate of identity under Rules 6 and 7. It reads as under-

 (3) “Transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act shall not be required to submit an application for certificate of identity under these rules: Provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act”.

  •  Since the identity of the petitioner is officially recorded in the AADHAAR card issued by Unique Identification Authority of India (UIDAI) and the passport issued by the Central Government, in view of Rule 3 of Transgender Persons(Protection of Rights) Rules, 2020, the petitioner is not required to make an application for certificate of her identity.

Decision

While allowing the present writ petition, the Court reiterated the Constitutional safeguards accorded to the third gender and issued requisite order to the respondent authorities.[Christina Lobo v. State of Karnataka, 2020 SCC OnLine Kar 1634, decided on 1-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

EVENTS LEADING TO THIS ORDER


  • The Citizenship (Amendment) Act, 2019 (CAA) was passed last year which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
  • The passage of CAA led to nationwide protests calling the CAA and the National Register of Citizens discriminatory. A women led protest 24/7 sit-in protest was also initiated in Shaheen Bagh, Delhi.
  • The Shaheen Bagh protest resulted in the closure of the Kalindi Kunj Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.
  • When the law enforcement authorities were control the protests and traffic, the Supreme Court opted for an ‘out of box’ solution and appointed Senior Advocate Sanjay R. Hegde and mediator trainer Sadhana Ramachandran as interlocutors.
  • The interlocutors made appreciable effort and submitted a report on 24.02.2020 which highlighted that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. The interlocutors did their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished.
  • The second report suggested that
    • The views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance.
    • While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road.
    • It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other.
    • Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.
  • With the advent of COVID-19 Pandemic, greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared. On this, the Court noticed

“Thus, really speaking, the reliefs in the present proceedings have worked themselves out.”

WHAT THE COURT SAID ON THE RIGHTS OF THE PROTESTERS


“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.”

The Court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e.,

  1. the right to freedom of speech and expression under Article 19(1)(a)
  2. the right to assemble peacefully without arms under Article 19(1)(b).

These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.

“Each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”

Noticing that in this age of technology and the internet, social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication, the Court said that technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses.

“The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident.”

The Court said that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks – as has been opined by the interlocutors and caused inconvenience of commuters.

WHAT THE COURT SAID ON THE RESPONSIBILITIES OF THE LAW ENFORCEMENT AUTHORITIES


“The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from.”

In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions.

The Court noticed that in the present case, unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.  It concluded with the following words:

“We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808, decided on 07.10.2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, CJ and Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an appeal which was filed being aggrieved by the order of the High Court in a matter of violation of fundamental rights alleging unlawful termination of employment.

Background:

The employee Applicant – Appellant – Appellant (Employee – Appellant) was recruited by Central Engineering Consultancy Bureau i.e. Respondent – Respondent – Respondent (Employer – Respondent) as a Civil Engineer Grade D1, in January 1986. The Employee – Appellant was suspended on a disciplinary issue on the 26th of August 2011, was found guilty upon the conclusion of the disciplinary inquiry and was terminated from employment on the 14th of October 2013. Being aggrieved with the termination of employment, the Employee – Appellant had filed a fundamental rights application in the Supreme Court against the Employer – Respondent alleging that the termination of his services was a breach of his fundamental rights enshrined in Article 12(1), 12(2) and 14(1) (g) of the Constitution. Subsequently the Employee – Appellant had filed an application against the Employer – Respondent in the Labour Tribunal of Colombo on the 17-03-2014 challenging the termination of his services. The Employer – Respondent filed its answer and raised the preliminary objection under Section 31 B (5) of the Industrial Disputes Act No.43 of 1950, that the Employee – Appellant could not maintain an application before the Labour Tribunal due to the fact that he had first filed a fundamental rights application before the Supreme Court. The preliminary objection was upheld by the Labour Tribunal and the Employee – Appellant’s application was dismissed. Being dissatisfied with the order the Employee – Appellant appealed to the High Court, it upheld the order of the Labour Tribunal and dismissed the appeal of the Employee – Appellant. Being aggrieved with the said Order of the High Court, the Employee – Appellant preferred an application for leave to appeal to the Supreme Court and leave to appeal was granted on the questions of law.

The Counsel for the Employer – Respondent, relying on Section 31B (5), submitted that the Employee – Appellant can challenge the termination of his services in several forums including the Labour Tribunal, District Court and Supreme Court, but he cannot seek legal remedies from multiple forums in respect of the same issue / dispute.

Issue:

The issue of law to be decided in this appeal was whether the provisions of section 31B (5) of the Industrial Disputes Act No. 43 of 1950, as amended, debar the Employee – Appellant from maintaining his application to the Labour Tribunal against the termination of his services by the Employer – Respondent claiming that the said termination of his services violated his fundamental rights guaranteed by Articles 12 (1), 12 (2) and 14 (1) (g) of the Constitution.

Decision:

The Court interpreted Part IV A of the Act which contains the provisions relating to Labour Tribunals, including section 31B (5). Part IVA was introduced by the Industrial Disputes (Amendment) Act No. 62 of 1957. Part IVA initially had four sections – i.e.: sections 31A, 31B, 31C and 31D. These sections have been subjected to a few amendments since 1957. Further, new sections 31DD, 31DDD [later repealed] and 31DDDD were added to Part IVA, by other Amendments to the Industrial Disputes Act and held that,

a workman who chooses not to avail himself of the procedure available under Part IVA of the Act in the first instance, but later realizes that he should resort to the provisions of Part IVA of the Act, should be penalized by debarring him from doing so unless he has received a determination from that other forum. I would add that debarring a workman from having access to a Labour Tribunal merely because he has, perhaps misguidedly, previously decided to refer his claim to another forum but has not received a determination from that forum, would go against the clear intention of the Legislature when it introduced Labour Tribunals in 1957.”

The Court while allowing the appeal relied on the Supreme Court judgment of Gamaethige v. Siriwardene, (1988 II CALR 62) where it was observed that exercise of the Supreme Court’s fundamental rights jurisdiction “cannot be equated to the prerogative writs”. This statement highlighted the even wider gulf between the nature of a fundamental rights application and an application to a Labour Tribunal. In view of these essential differences, it was said that the workman-appellant’s fundamental rights application and his application to the Labour Tribunal cover the same or similar ground and have the same or similar scope.

Secondly, it appeared that the Employee-Appellant’s fundamental rights application and his application to the Labour Tribunal sought similar substantive reliefs.

Thirdly, whether he has been subjected to unequal treatment or been denied the equal protection of the law or been made the victim of unreasonable or arbitrary or mala fide action on the part of the employer-respondent [which is said to be an organ or entity of the State]. The termination of the workman-appellant’s services is only a part of the issue before the Supreme Court and is looked at by this Court in the context of the questions described in the preceding sentence. On the other hand, the application to the Labour Tribunal will be decided solely on the core issue of whether the termination of services was just and equitable.

Fourthly, there was a significant disparity between the procedure followed by this Court in entertaining and determining the workman-appellant’s fundamental rights application and the procedure followed by a Labour Tribunal when determining the application made to it by the Employee-Appellant. The fundamental rights application will proceed to a full hearing only if the Employee-Appellant is first able to make out a prima facie case that his fundamental rights have been violated by the Employer-Respondent and is granted Leave to Proceed with the fundamental rights application.

The Court set aside the decision of the Labour Court and the High Court and directed the Labour Court to rehear the application.[W.K.P.I. Rodrigo v. Central Engineering Consultancy Bureau, SC Appeal No: 228 of 2017, decided on 02-10-2020]


Suchita Shukla, Editorial Assitant has put this story together

Hot Off The PressNews

His Holiness Kesavananda Bharati Sripadagalvaru, who initiated the case before the Supreme Court that gave us the ‘Basic Structure’ doctrine, passed away this morning at the age of 79 in his ashram at Edneer in north Kerala’s Kasaragod district.

His Holiness Kesavananda Bharati filed a petition on March 21, 1970, under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution wherein he prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. The issues that started with challenge to 24th, 25th, 26th and 29th Amendments to the Constitution, went on to be heard by a Full Bench of 13 judges over seminal questions involving the limits on power of the Parliament to amend the Constitution.

After hearing the matter for almost 70 days, the 13-judge bench in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, wrote eleven judgments with nine judges writing individual judgments and Justices Shelat & Mukherjea and Justices Hegde and Grover teaming up to write combined judgments and held that the Parliament cannot alter the basic structure of the Constitution.

Here are some excerpts from the Judgment:

“Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.”

-Justice HR Khanna


“I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for Government, has a noble and grand vision. The vision was put in words in the preamble and carried out in part by conferring fundamental rights on the people.”

-Justice SM Sikri, Chief Justice of India


“Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution. The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take away or abridge the fundamental rights contained in Part III.”

-Justices JM Shelat and AN Grover


“Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change.”

-Justices KS Hegde and AK Mukherjea


“One cannot lift parts of the Constitution above it by ascribing ultra-constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power.”

-Justice DG Palekar


“Parliament cannot under Article 368 abrogate, damage or destroy, any of the fundamental rights though it can abridge to an extent where it does not amount to abrogation, damage or destruction.”

-Justice P. Jaganmohan Reddy


“If the State fails to create conditions in which the fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.”

-Justice YV Chandrachud


“… a Constitution is always valid whereas a law is valid only if it is in conformity with the Constitution … Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be.”

-Justice KK Mathew


“… the good of the mass of citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the Preamble or the “key” which puts “justice, social, economic and political” as the first of the four objectives of the Constitution by means of which “the people” of India constituted “a Sovereign Democratic Republic”.”

-Justice MH Beg


“Article 368 places no express limits on the amending power. Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Article 368 and thus make fundamental rights immutable if they so desire. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words.”

-Justice SN Dwivedi


“Where the people express themselves in careful and measured terms in framing the Constitution and they leave as little as possible to implications, amendments or changes in the existing order or conditions cannot be left to inserting implications by reference to the Preamble which is an expression of the intention at the time of the framing of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.”

-Justice AN Ray

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ., L.T.B.Dehideniya and P. Padman Surasena, JJ., dismissed an application which was filed aggrieved by the denial of admission in the school stating it to be a Fundamental Right violation guaranteed under Article 12(1) of the Constitution.

Petitioners being the parents of the minor child had made an application to admit the child to Visaka Vidyalaya, Colombo. The application was based on the category of ‘children of persons belonging to the staff in an institution directly involved in school education’. Under the circular 24/ 2018 (1R1), paragraph 7.5.2.2, if a parent had worked in a difficult school, that parent was entitled to obtain 03 marks for a full year, up to the maximum of 15 marks, in relation to which he had submitted all the relevant documents with the school. The petitioner contended that the interview board headed by the Respondent had not accepted this document as proof of the fact that, A/ Habarana Maha Vidyalaya was a difficult school. Thus, the instant application. The Petitioners, on the basis of this document, argued that, they were entitled for additional 12 marks after which they go above the cut-off mark and their minor child would have been admitted to Visaka Vidyalaya. According to the respondents the appeal board had not considered this document because they were not permitted to consider any document other than the documents that were tendered at the 1st interview.

The Court while dismissing the application stated that the said act does not amount to a violation of Fundamental Rights under Article 12(1) of the Constitution and explained that Respondent being the Principal of Visaka Vidyalaya cannot be held liable for her conduct as the Petitioners were unable to produce a document certifying A/ Habarana Maha Vidyalaya is a difficult school at the interview and there was clear negligence on the part of the Petitioners in not producing the correct documents at the time of the interview and also the document that they relied on does not provide any basis for a relief provided by law. [Iresha Dulashini Dangolla v. Sandamali Aviruppola, 2020 SCC OnLine SL SC 5, decided on 04-08-2020]


*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. addressed a matter wherein a woman who converted from Hinduism to Islam out of her own will was being subjected to serious life threats from her relatives who were creating a fear psychosis in her mind.

Conversion to Islam

Petitioner claimed that she out of her own will converted her religion to Islam on 14-06-2020 and adopted a Muslim name as Fatima and as soon as the relatives of the Petitioner came to know of the same fact they started continuously threatening her to renounce Islam and revert back to her original religion, i.e., Hinduism.

Fear Psychosis

Petitioner has been receiving serious threats from her relatives who are creating a fear psychosis in the mind of the petitioner and have given her ultimatum that in case she would not revert back to Hinduism she would be eliminated.

Protection sought

On seeking protection from SHO, Police nothing substantial was done and the petitioner is still sustaining to live in fear psychosis with non-allowance to freely profess and propagate her religion.

The above results in violation of her fundamental rights.

Court admitted the petition and issue notice to the respondents.

Matter has been listed for 24-08-2020 and till then respondents 1 to 6 have been directed to ensure protection to the life and liberty of the petitioner. [Fatima v. UT of J&K, 2020 SCC OnLine J&K 364  , decided on 20-07-2020]

Hot Off The PressNews

Karnataka High Court: While deliberating upon the Government Orders issued by the State of Karnataka wherein restrictions/ ban was imposed on conduct of online classes by schools, the Division Bench of Abhay Srinivas Oka, CJ, and Nataraj Rangaswamy, J., expressing a prima facie view, held that the ban imposed by the State Government on the conduct of online classes infringes the Fundamental Rights of the children and therefore is violative of Arts. 21 and 21A of the Constitution.

The State Government had issued the impugned Orders on 15-06-2020 and 27-06-2020 via which they had imposed a ban on online classes from pre-school to Class 5th and from Class 1st to Class 10th respectively. Furthermore, the Court passed an interim direction thereby putting a stay on the impugned Orders. However, the Bench deemed it fit to clarify that the private schools should not interpret this decision as way to make online classes compulsory and collect extra fees for the same. Furthermore, those children who do not opt for online classes should not be deprived of coaching when the normal functioning of schools resume.


         [Source: The Times of India]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., while allowing the present petition with respect to the issue of right to agitation, held that,

“Our ancestors fought for freedom and also for the human rights and due to the philosophy behind the agitations, we created our constitution. It is unfortunate but, people are required to agitate against their own Government now but only on that ground the agitation cannot be suppressed.”

The present petition was filed against the order of the Police Inspector, Beed passed under Section 149 CrPC, the order passed by the Additional District Magistrate, Beed along with said the petitioners also sought for direction to respondents to see that petitioner companions were allowed to hold peaceful demonstrations and agitations at Old Idgah Maidan at Majalgaon for indefinite period between 6 pm to 10 pm.

Issue for consideration in the present petition is that:

Whether the aforesaid order issued under Section 37(1)(3) of the Maharashtra Police Act, 1951 could have been issued to prevent such agitation?

Analysis of High Court

Court noted that the order made by Additional District Magistrate shows that the District Superintendent of Police had informed by letter to the DM that many political parties and associations in the district had started agitations which included blockade of roads, taking out morchas, etc., for many causes including protest against the Citizenship Amendment Act (CAA).

Apprehension was that due to such agitations there was a possibility of some untoward incident and there was a possibility of creation of law and order problem. In the aforesaid order, DM prevent many activities which included carrying of arms, prevented sloganeering, singing, beating of drums, etc.

On taking the above into consideration, the Court said that there was no fairness in the above order.

Court added to its opinion that,

When such an act is made, some people may be of a particular religion like Muslims ay feel that it is against their interest and such an act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of the same.

Courts are bound to see whether these persons have the right to agitate, oppose the law. If Court finds that it is part of their fundamental right, it is not open to the Court to ascertain whether the exercise of such right will create law and order problem.

Further the Court cannot go with the presumption that only a particular community or religion has interest opposing such law. As in the case of the present order that has been mentioned in the petition, it is clearly specified that persons of all religions have started the agitation.

We need to remember the constitutional and legal history when we consider the provisions of the constitution. We need to keep in mind the freedom struggle and the causes which were taken up by the freedom fighters.

Explaining and clarifying the right to agitate, Court also stated that,

India got freedom due to agitations which were non-violent and this path of non-violence is followed by the people of this country till date.

Referring to the present petition, Bench stated that petitioners and companions want to agitate peacefully to show their protest.

Our ancestors fought for freedom and also for human rights and due to the philosophy behind the agitations, we created our constitution.

Decision

Court is expected to consider the right of persons to start agitation in a peaceful way.

Court expresses that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law.

Stressing on the rights of people, Court pointed out that,

If the persons agitating believe that it is against the ‘equality’ provided under Article 14, they have the right to express their feelings as provided under Article 19 of the Constitution of India.

Fraternity

Circumstance that the persons of other communities, religions are supporting the minority community shows that we have achieved fraternity to a great extent.

“…it is the dissent of people against the act made by the Government and the bureaucracy needs to be sensitive when it exercises powers given by law.”

Thus, the people from bureaucracy need to be sensitized by giving them proper training on human rights which are incorporated as fundamental rights in the constitution.

Hence, High Court held that the order of Additional District Magistrate is illegal and needs to be quashed and set aside and consequently the order made by the police station concerned is illegal and is to be set aside. [Iftekhar Zakee Shaikh v. State of Maharashtra, 2020 SCC OnLine Bom 244, decided on 13-02-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, Murdu N. B. Fernando and E. A. G. R. Amarasekera, JJ., dismissed and appeal filed complaining about the violation of his fundamental rights guaranteed under Articles 11, 12(1) and 13(1).

According to the Petitioner, while he was driving his three-wheeler from Rajagiriya to Malwana two persons who were unknown to him, had blocked his path with their motorcycle and had brought his three-wheeler to a halt and who were dressed in civilian clothing had then forcibly took the Petitioner to the Police Station where he was kept in the police cell for about half an hour without any reasons being given for his arrest. Thereafter the petitioner was handed over to the respondents and he was ordered to drive his three-wheeler to another police station and while he was driving the respondent who was seated at the back of the three-wheeler had beaten the Petitioner on the head and when he parked the vehicle he was again assaulted with such an intensity that he fainted and he was detained in the police station and was set free the other morning after recording of his statement. He contends to have admitted to the hospital while he did not produce any relevant evidence for the same. There were contradictions in the petition and the letter sent by Deputy Inspector General of Police. The Court had observed that the Petitioner had not cited the two police officers who arrested him and the respondents had his custody at the first police station so they were not present at the time of the arrest so they cannot be held liable for unlawful arrest of the Petitioner. The Petitioner had complained of torture at the hands of the Respondents however, records show that there were no external injuries to be seen on the Petitioner.

The Court while dismissing the petition stated that they are of the opinion that the Petitioner was unable to prove the alleged violation. [Arangallage Samantha v. Officer-in-charge, S.C. (F/R) Application No. 458 of 2012, decided on 28-01-2020]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J. prohibited the State from deporting the petitioners who were refugees belonging to the Rohingya community, and directed the respondents to provide them with all the basic amenities till the pendency of the petition.

In this particular case, the petitioners were refugees from Myanmar who belong to the “Rohingya” community, and their grievance was that the Indian authority was deporting them back to Myanmar even though they had been disowned by Myanmar. As such, their deportation would render them stateless.

Rachit Lakhmani and Indrojeet Dey, Advocates, appearing for the petitioner, pleaded that the aggrieved had completed their sentence for the alleged offences against them upon being detained by the respondent. They urged and this order will ultimately result in their death as the said country has declared a policy of all-out onslaught against the “Rohingya” community.

A.K. Nag, counsel appearing on behalf of the respondent, submitted that the instant writ petition was vague. He further submitted that the Ministry of External Affairs of the Union of India was a necessary party and as such it must be allowed to submit its plea in the matter.

An adjournment was sought for on behalf of the Union of India but the Court opined that in view of basic human rights of individuals and spirit of humanity, in accordance with Fundamental Rights provided by the Constitution of India as well as the U.N. Charter, a minimum protection ought to be given to the petitioners till the writ petition is decided.

In view thereof, the Court issued an order of injunction preventing the State from deporting the petitioners until the pendency of the present writ petition. The court further directed the respondent to ensure that the petitioners are provided with basic amenities along with a normal respectable life, and the advocate representing the petitioners can meet them in the meantime.[Abdur Sukur v. State of West Bengal, 2019 SCC OnLine Cal 5455, decided on 24-12-2019]

Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. dismissed the writ petition filed under Articles 226 and 227 of the Constitution of India,  by a Public Works Department Contractor.

In this petition Section 6 of the Karnataka Transparency in Public Procurements (KTTP) Act, 1999, was upheld by this Court. It enabled to make reservations in the process of Tenders for Scheduled Castes and Scheduled Tribes.

The facts of the case are as follows:

The Karnataka Transparency in Public Procurements Act, 1999 came into force w.e.f. 04-10-2000. The main intent behind coining this Act was that it streamlined the procedure in public procurement and also ensured accountability. The State Government made it mandatory for all the procurement agencies under the Government to follow the tendering process in public procurement.

Section 6 of the KTTP Act, says that no tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the Rules made thereunder. The KTTP rules are made by the Government of Karnataka, exercising the powers conferred under sub-section (1) of Section 23. The Government by the impugned amendments amended the provisions of Section 6 of the KTTP Act by the KTTP (Amendment) Act, 2016 and also inserted Rule 27(A) in the KTTP Rules by the Karnataka Transparency in Public Procurements (Amendment) Rules 2017.

Transparency in Public Procurements (Amendments) Rules, 2017, resulted in certain reservations created in the process of Tender, for the benefit of the Scheduled Castes and Scheduled Tribes. According to the Amendment, the Tender Inviting Authority has to reserve 17.15% of the works to the Scheduled Castes category and 6.95% of works to the Scheduled Tribes Category in the construction works. The value of such work should not exceed Rs 50,00,000. Hence, the petitioner challenged the said amendments.

The counsel for the petitioner, S.M. Chandrashekhar, contends that while making the reservations, the Constitution of India provided social, economic and educational and cultural safeguards to the Scheduled Caste and Scheduled Tribe under Articles 17, Article 46 and Article 15(4) of the Constitution of India. The Constitution of India also provides for political safeguards under Article 243D, Article 243T, Article 330 and Article 332. Service safeguards are covered under Article 16(4), Article 16(4A) and Article 16(4B). Article 164 of the Constitution of India provided other safeguards to the Scheduled Castes and Scheduled Tribes.

Further, Article 19(1)(g) of the Constitution of India states that every citizen has a right to practice any profession or to carry on any occupation, trade or business. The Amendment made by the State Government violated Article 19(1)(g) of the Constitution of India. Hence, it was contended by the petitioner that the amendment was ultra vires of the Constitution of India and should be struck down. It was brought to notice that the amendment was in violation of the Fundamental Rights and does not conform to constitutional principles and is discriminatory. It was also contended that the amendment is discriminatory and arbitrary, hence it is in violation of Article 14 of the Constitution of India on the same ground.

Still, further, Article 14 of the Constitution of India guarantees Equality, and the Right to Equality includes the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and equality of opportunity in matters of employment. Both the insertion of proviso to Section 6 of the KTTP Act and insertion of Rule 27(A) in KTTP Rules are arbitrary and unconstitutional and hence they should be struck as per the contentions of the petitioner.

The counsel for the respondent, R. Nataraj, Additional Advocate General, contended that the petition filed by the petitioner is not maintainable either in law or on facts and there it should be dismissed. The counsel further states that the Legislation is based on the principle of distributive justice, protect the interests of weaker sections of the people under Article 42 of the Constitution of India. The said Article protects the Scheduled Castes and Scheduled Tribes and protects them from social injustice and all the forms of the exploitation. The counsel further contends that the impugned Legislation was brought to minimize the inequalities, distributive its largess to the weaker sections and to make life worth living with dignity. It was said that providing reservation in Government contracts to the persons belonging to the above-mentioned group would also achieve the constitutional objectives of rendering socio-economic justice, which in turn improve their economic status so that their economic development is improved.

Further, it elaborated that Economic empowerment is a basic human right and a fundamental right as part of the right to live, equality and status and dignity to the poor, weaker sections, Dalits and tribe.

The two questions framed by the Court were:

  1. is the amendment of inserting proviso 6 in the KTTP Act and inserting Rule 27(A) in the rules are justified?
  2. I the amendment in violation of the Constitution of India?

The Court on considering these arguments mentioned for the first issue that the reservation shall only apply for education, employment and not in any other subjects including the Tender process and Part III of the Constitution does not provide such reservation for Scheduled Castes and Scheduled Tribes and therefore the impugned reservation is in utter violation of the provisions of Articles 14, 15(1), 16(1) and 19(1)(g) of the Constitution of India. Court held that though the argument is attractive the Court is not in the position to accept the same as the impugned reservation does not abrogate or abridges rights guaranteed by Part III of the Constitution and it is not violative of the basic structure.

It was observed that equal status is to be provided to those communities which are backward and is depressed. Along with that, it is for them on whom injustice has been perpetrated. It was the growth of the country and so that many parties in the country may not mislead the poor. Hence, the prayer of the petitioner was not accepted.

The first issue raised was answered in affirmative. The 2nd issue was answered in the negative holding that the impugned amendments were not violative of the Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India and are reasonable and in consonance with the right and spirit of the Constitution of India. [Vishwanath H.M. v Govt. of Karnataka, 2019 SCC OnLine Kar 2671, decided on 20-12-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, L.T.B. Dehideniya and Murdu N.B.Fernando, JJ., dismissed an application filed alleging the infringement of the petitioner’s Fundamental Rights guaranteed under Articles 11, 12(1) and 13 of the Constitution.

The petitioner who was Attorney-at-Law stated that when she had gone to Meegahatenna police station to surrender a suspect wanted in a case pending before the Magistrate Court of Matugama and when she informed the same to the respondents, one of the respondents started assaulting the suspect to which the petitioner objected and told the respondent to follow the due process of law. She asked him to provide her with the log entry as proof of production of suspect before the police station to which he verbally abused her and told her to stay outside and enter only when she was called inside and while she was standing outside she was insulted and threatened with imprisonment following which the mental trauma led to the miscarriage of the petitioner. On the contrary, the respondents stated that the petitioner, when arrived for the surrender of the suspect, was told to stand outside the room and the respondents started inquiring with the suspect to which she got annoyed and started insulting the officers. The act resulted in the departmental inquiry against the respondents but the petitioner was unable to establish the allegations leveled against the said respondents.

The Court while dismissing the petition explained that since the petitioner was unable to establish the allegations leveled against the respondents the submission relating to the breach of ‘police rules’ does not have any merit and since no medical evidence produced before Court substantiated that use of force or an act of assault was committed on the petitioner by the respondents and it is important to note that Attorney-at-Law is governed by the Supreme Court Rules of 1988 where it is specifically stated that on Attorney at-Law must not conduct herself in any manner which would be reasonably regarded as unworthy, disgraceful and dishonorable by Attorneys-at-Law of good repute. Thus the Court held that the petitioner’s Fundamental Rights have not been violated. [Ratnayaka Weerakoonge Sandya Kumari v. Lakshitha Weerasinghe, SC FR 75 of 2012, decided on 18-12-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application filed by the wife of the deceased, Rathnayake Tharanga Lakmali, on behalf of her husband Ranamukage Ajith Prasanna, pleading that the respondents and the State have infringed the Fundamental Rights of her husband guaranteed to him under Article 11 and 13(1) of the Constitution.

The petitioner submitted that on 16-09-2010, when she was at home with her husband and children, a team of police officers had come to their house, searched the house and had found nothing after which they had arrested the deceased and took him away in a vehicle stating that he was taken in order to record a statement. On the following day, the petitioner went to the police station where she was not allowed to meet the deceased and the next day she was told that the deceased had been taken to her house, when she reached her house she was informed by her mother that the deceased was brought home by the police team and shown to them, and the aunt of the petitioner was also present who stated that the police had not allowed the deceased to speak to them and that she had fed the deceased while he was handcuffed and the deceased had pleaded to the aunt to save him as he had the apprehension of being killed. On 19-9- 2010, the elder brother of the deceased had informed the petitioner that the deceased was shot and taken to the Embilipitiya Hospital. The Post-Mortem Examination (PME) was held on 21st September. The petitioner claimed that her statements were recorded prior to the PME and that she had not been allowed to be present at the time of the PME.

Respondents, on the other hand, claimed that live ammunitions were recovered at the house of the deceased at the time of the arrest further that facts were reported to the Magistrate of Embilipitiya through the Assistant Superintendent of Police (ASP) and a detention order was obtained hence,  the deceased was arrested and detained properly.

The aunt of the petitioner had described that the deceased had a pale and swollen face when he was brought home. Upon the conclusion of the inquest proceedings, before the Order was made, the petitioner had made an application before the learned Magistrate requesting that a JMO other than the JMO in Embilipitiya be directed to conduct the Post-Mortem Examination as she could not expect an accurate report from the latter. However, the Magistrate disallowed the application. Further, the Magistrate made an order and found that the deceased’s death was caused by the discharge of a bullet from a firearm and referred the matter to the Attorney-General. Supported from interim relief the Petitioner made an application to direct the learned Magistrate of Embilipitiya to exhume the body of the deceased and to conduct a fresh Post-Mortem Examination by a competent JMO of Colombo or Karapitiya Teaching Hospital, Galle. The Court, after hearing submissions of both parties directed the JMO of the Karapitiya Teaching Hospital, Galle to conduct a second Post-Mortem Report.

The Court while allowing the application stated that the right to life as implicitly recognised in Chapter III of the Constitution is reinforced by International Conventions ratified by Sri Lanka and expressed the view that Articles 11 and 13 have been violated by the respondents; further, the State has failed its responsibility and has violated the Fundamental Rights of the deceased. Accordingly, the Court directed the State to pay Rs 1 million to the petitioner. [Rathnayake Tharanga Lakmali v. Niroshan Abeykoon, 2019 SCC OnLine SL SC 14, decided on 17-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: Ashok Kumar Gaur, J. dismissed the writ petition filed against the order passed by the Registrar, Cooperative Societies-cum Registrar Institution exercising the powers inferred upon him under Section 24 of the Rajasthan Sports (Registration, Recognition and Regulation of Association) Act, 2005.

The respondent had issued a notice against the petitioners under Section 24 of the said Act with respect to the powers inferred upon him. The petitioners herein subsequently filed a civil writ petition challenging the notice issued by the respondent. The Court refused to interfere in the writ petition and dismissed the same. Further, when the petitioner approached the respondent, he then issued an order against the petitioner regarding disqualification. The petitioner then filed the current writ petition questioning the jurisdiction of the respondent Registrar under the Act of 2005.

The counsel for the petitioner, S.S. Hora, contended that the respondent does not have the jurisdiction for disqualification; instead, he can conduct fresh elections. It was contended that under Article 226 of the Constitution of India, High Court has the discretion to entertain a writ petition where there has been a violation of fundamental rights or principles of natural justice.

The learned counsels for the respondent, M.S. Singhvi, Darsh Pareek, Rajendra Prasad, Karan Tiberwal and S.S. Raghav, contended that the respondent Registrar was competent to issue such notice and order with respect to powers conferred upon him. It was further contended that the writ petition should be dismissed as the petitioner had other alternative remedies.

The Court noted that the first writ petition filed by the petitioner had been dismissed on the ground that the power invoked by the Registrar, could not be faulted for conducting enquiry. It was observed that when the respondent had passed the impugned order exercising his power under Section 24 of the Act, the proper course open to the petitioner was to file an appeal under Section 35 of the Act.

It was opined that the remedy provided to any aggrieved person against the order passed by the Registrar, is a statutory remedy and writ jurisdiction in such cases straightaway cannot be exercised.

Relying on the Judgment in Agarwal Tracom Pvt. Ltd v. Punjab National Bank, (2018) 1 SCC 626 it was held that a High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. Consequently, the writ petition was dismissed. [District Cricket Association v. Deputy Registrar, Cooperative Societies, 2019 SCC OnLine Raj 3121, decided on 24-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J. dismissed a writ petition filed under Article 226 of the Constitution of India by the petitioners who were the ex-employees of the Union Carbide, Bhopal. The petition was filed against the order passed by the Sessions Judge, Bhopal, in the Criminal Appeals of 2010 against the order of conviction. 

The petitioners were convicted under Sections 304-A, 336 and 34 IPC for Bhopal Gas Tragedy in 1984. The appeals for the said convictions are still pending with the Sessions Court. The main issue in the instant writ was that the petitioners’ sought directions to the Central Bureau of Investigation for production of case diary, the petitioner alleged that the investigation conducted by CBI was malafide, malicious and fraudulent. 

Anirben Ray, Rajesh Sahani and Rajeev Mishra, counsels for the petitioners submitted that the truth was deliberately suppressed in the case and in fact, no investigation was carried out by the CBI and the charge sheet was drafted as per the directives of the Government of India without application of mind by the Investigating Officer, who had no knowledge or understanding of most of its contents. It was further submitted that under Section 172(3) of CrPC, case diary could not be summoned by the accused but the non-production of the same led to prejudice to the Fundamental Rights of the accused. It is submitted that for the proper disposal of the criminal appeals and for doing the justice, it was incumbent for the lower appellate court to call for the case diary and ascertain the truth which had been deliberately suppressed.

The Sessions Judge rejected the said contentions earlier in appeal on the ground that there was a clear bar under CrPC for the use of case diary but the same can be availed by the writ jurisdiction. 

The counsel for the State, Vikram Singh, opposed the prayer of the petitioners and submitted that no interference in the impugned order was made out, as the aforesaid objection was never raised by the petitioners during the course of trial despite having ample opportunities to do so. It was submitted that the petitioners had refrained from raising aforesaid ground at the time when they had the opportunity to do the same and the application had been filed by the petitioners only to drag the matter before the Sessions Court. It was further submitted that there was a clear bar under Section 172(3) of CrPC for use of case diary by an accused.

The Court carefully observed that petitioners were represented by senior counsel during their trial as well as in appeal. It was rather intriguing as to what made these advocates who represented the petitioners not to file such application during the course of the trial despite having many opportunities and the fact that the trial itself took around 14 long years to conclude and as if it was not enough even the application for summoning the case diary had been filed by the petitioners after a period of six years after their appeal was filed against the judgment. It was held by the Court that “petitioners cannot cry foul at this stage of the proceedings and try to open a Pandora box in the name of their fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.” The Court further observed that the application filed by the petitioners was clearly filed with malafide intention to further prolong the criminal appeals which practice was deprecated. Court found that no error was committed by the Sessions Judge in rejecting the said application hence the writ petition was found to be devoid of merits. [S.P. Choudhary v. Union of India, 2019 SCC OnLine MP 1228, decided on 25-06-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, S. Thurairaja and E.A.G.R. Amarasekara, JJ. contemplated a matter of an Application under Article 17 and 126 of the Constitution of Sri Lanka, where the petitioner argued for his Fundamental Rights which were violated by the State.

Minimal facts relevant for the proper appreciation are that the petitioner felt discriminated for the appointment of Assistant Superintendent of Police on the basis of his marital status under Article 12(1). He applied for the post of A.S.P. and succeeded in the written exam as well as the interview. Subsequently, before the final interview, he solemnized his marriage. Before the final appointment was given, the Petitioner had contracted his marriage. When he submitted his marriage certificate, authorities had disqualified for selection.

The petitioner had submitted two important matters to be adjudicated, first that whether such rejection on the basis of marital status is unconstitutional and in violation of inter-alia the equality which is guaranteed, second that In any event, whether there was a prohibition at all, for married persons to be denied the appointment. He relied on the International Covenant for Civil and Political Rights (ICCPR), Constitution and General Marriages Ordinance which protects such right to get married. Reference to U.S.A and Nigeria was placed upon by the petitioner to which the Supreme Court stated that, “Here, we basically followed the discipline in the military services from British with more specialization in domestic values. Hence, the order of discipline in uniformed services cannot be easily compared with other jurisdictions”.

The Attorney General for Sri Lanka stated that the classification was based on rational and disciplinary matters of uniformed services, it was for the better training of the officers. The Respondents submitted that, the Petitioner had applied on an advertisement published in Gazette according to the said Gazette; the Open Competitive Examination for the Selections of Assistant Superintendent of Police was called under several categories. Among many, one of the requirements was to be unmarried. Except for the Ordinary Police Service Category at other positions are more technical and specialized in a certain field of work. Further, it was observed that, those are open to female candidates too. The reason quoted for such condition was, ‘Ordinary Police Service category’ was in charge of the law and order, which obviously needed strenuous physical and weapon training, hence the appointing authorities had specified that, these candidates should be unmarried with less or no family commitment for the purpose of training. Further they relied on Air India v. Nergesh Meerza, (1981) 4 SCC 335, where the Supreme Court of India held that, “Based on reasonable classification that requiring air hostesses to be unmarried for period of four years after getting employment was not a violation of the equality provision, however, that requiring them to leave employment after having children was against the equality provision.”

The petitioner bought an argument that the word “candidate” was not to be applied to Petitioner, because he was already selected, hence his status of marriage should not be questioned. The requirement of unmarried was for the purpose of training after the appointment. Therefore requirement was applicable until the conclusion of selection, training and the probation period or until the period specified by the appointing authority.

In view of the above, the Court found that there was no discrimination by the State and such condition was well drafted for the specified post. Hence it was held that no violation of the Fundamental Right of the petitioner.[Rubasin Gamage Indika Athula v. Inspector General of Police, 2019 SCC OnLine SL SC 4, decided on 07-06-2019]

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., quashed a case registered against the petitioner along with others for demonstrating and raising slogans against the Principal and the Head of the Department (English) of Government College affiliated to Madurai Kamaraj University.

On 17-02-2016, on Anandharaj, a student of B.A. (English), III year, in the said college, committed suicide in his house by self-immolation. After his post-mortem, the petitioner and other students started a demonstration and raised slogans. Since during the demonstration, the petitioner and other students prevented the ingress and egress of the general public from the Government Hospital, a complaint was lodged against them. After completing the investigation, the Police filed a charge-sheet before the Judicial Magistrate. The present petition was filed for quashing of the same.

Holding that the present case was squarely covered an earlier decision of the Court in Jeevanandham v. State, Crl. OP (MD) No. 1356 of 2018, dated 20-09-2018, the High Court observed: “this Court has held that the assembly of persons were expressing and claiming for minimum rights that are guaranteed to an ordinary citizens. If such an assembly of persons are to be trifled by registering an FIR under Section 143 IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to a violation of fundamental rights guaranteed under the Constitution.” In such view of the matter, the present petition was allowed and the case against the petition pending before the Judicial Magistrate was quashed. [G. Ayyapan v. State, Crl. OP (MD) No. 4305 of 2019, dated 08-04-2019]

Case BriefsForeign Courts

Mauritius Intermediate Court: The Bench of B.R. Jannoo- Jaunbocus, set aside the motion of the defendant in relation to the protection of his fundamental rights.

The facts of the case are that the accused was a public official and was charged under Sections 4(1)(b)(2) of the Prevention of Corruption Act, 2002 for unlawfully and criminally, soliciting from another person, a gratification for doing an act which was facilitated by his duties. The case was heard by a differently constituted Bench of the Intermediate Court, which dismissed the matter against the accused.  It was then appealed to the Supreme Court against the acquittal. The Court was faced with the Herculean task of interpreting the Constitution. The questions before the Court were –

  1. Whether the Court on appeal can remit back a case to the lower Court with the direction that another Magistrate, other than the trial Court should hear evidence and proceed to pass sentence in the teeth of Section 10 of the Constitution?
  2. Whether a newly constituted bench can sentence an accused without hearing all the evidence on record?

The Court held that the right of the accused to a fair hearing at sentencing stage and the duty upon the court to give an accused party the opportunity to be heard before sentence should be passed upon him. An omission to hear a defendant before passing sentence is a serious breach of procedural fairness. The direction given by the Supreme Court in the present case was that of directing the Presiding Magistrate to designate another magistrate “to hear evidence on the appropriate sentence to be passed and proceed to sentence”. The Court concluded that there was no infringement of the principle laid down in Sip Heng Wong Ng v. R (Privy Council Appeal No 52 of 1985) [1985 MR 142], if it were to proceed with the hearing for the purpose of sentencing. The motion of the defence was set aside. [Independent Commission Against Corruption v. JOTTEE Dharmanund, 2019 INT 3, decided on 17-01-2019]