Case BriefsHigh Courts

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

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

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

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

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

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

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


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

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

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

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

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

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

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

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

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

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


Sucheta Sarkar, Editorial Assistant has reported this brief.


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

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Judge Bench of Sisira. J. de Abrew, Murdu Fernando and Gamini Amarasekara, JJ., allowed a petition which was filed by the petitioner alleging that her Fundamental Rights guaranteed by Articles 12(1), 12(2), and 14(1)(g) of the Constitution had been violated by the Respondents.

The Petitioner who passed had the GCE (Ordinary Level) with five distinctions in the year 2000 and the GCE (Advanced Level) with two credit passes and one simple pass in the year 2003, was appointed as Management Assistant in the Department of Irrigation on contract basis with effect from 21-5-2008, thereafter her services were extended till 31-12-2014. Thereafter, the Petitioner was appointed to the post of clerk with effect from 24-10-2014 and stated that she had fulfilled the requirements stated in the said Circular. After the Petitioner assumed duties as a clerk, she was paid salaries from January 2015 to August 2015 on the salary scale stated in the said letter of appointment. However, the Petitioner’s appointment to the post of clerk was cancelled with effect from 17-11-2014 which was the date of the letter of appointment.

The Senior State Counsel (SSC), Mr. Rajiv Goonatilake contended that the Petitioner was not entitled to be appointed to the post of clerk since the said Circular had authorized to appoint Management Assistants to the permanent cadre only if they (Management Assistants) were drawing the salary scale of MN1 and in the current case Petitioner was not on the salary scale of MN1 but on the salary scale of MN2. According to the contention of the SSC, if the Petitioner was drawing a salary of Rs.13,120/-, she was entitled to be appointed to the permanent cadre. It was alleged that it is an accepted principle in law that no man is permitted to take advantage of his own mistake. This view was supported by the observation made by His Lordship Justice Sansoni in the case of Kanapathipillai v. Meerasaibo, 58 NLR page41 at page 43 wherein His Lordship had observed thus “no man is allowed to take advantage of his wrong.” The Court observed that in the present case, the Petitioner’s appointment to the post of clerk (permanent cadre) was cancelled on the basis of an alleged mistake committed by the Director-General of Irrigation who had acted on behalf of the Government.

The letter of appointment stated that this post was permanent and pensionable. Her salary was Rs.13,120/-. The Government paid her salary (Rs.13,120/-) on the basis that she had been appointed to the post of clerk for eight months and remitted Rs.870/- monthly to the W&OP. This was established by her salary slips marked as P10(i) to P10(viii). The Petitioner gave up her post of Management Assistant on contract basis when she was appointed to the new post. Presently, the Petitioner had lost her earlier post of Management Assistant and her new post of clerk.

The Court relied on certain judicial decisions considering the question of whether the Petitioner had a legitimate expectation of continuing in the permanent cadre of the Government Service. In the case of Dayaratne v. Minister of Health, (1999) 1 SLR 393 this court held that,

            “On the facts of the case, the petitioners had a legitimate expectation that they would, upon satisfying prescribed conditions, be provided with a course of training for the examination leading to the award of the certificate of competency as Assistant Medical Practitioners. The decision effecting a change of policy which destroyed the expectation of the petitioners did not depend upon considerations of public interest. In deciding upon the conflicting interests of Graduate Medical Officers and Assistant Medical Practitioners, the 1st, 2nd and 3rd respondents (the Minister, his Secretary and the Deputy Director General Administration, respectively) considered the views of the GMOA and yielded to their pressure. Neither the views of the Assistant Medical Practitioners nor those of the petitioners were sought. Hence, rights of the petitioners guaranteed by Article 12 (1) of the Constitution were violated.”

Other cases relied on by the Court were Sirimal v. Board of Directors of the Co-operative Wholesale Establishment, (2003) 2 SLR 23; Surangani Marapana v. Bank of Ceylon, (1997) 3 SLR 156 and Pinnawala v. Sri Lanka Insurance Corporation, (1997) 3 SLR 85.

The Court finally considering all the matters above held that Petitioner had a legitimate expectation to continue in the permanent cadre of Government Service until the date of her retirement.

The Court while allowing the petition held that Petitioner’s fundamental rights guaranteed by Article 12(1) and 14(1)(g) of the Constitution had been violated by the Director General of Irrigation who acted on behalf of the Government and further held that Petitioner was entitled to be in the permanent cadre of Government Service on conditions stipulated in her letter of appointment directing the respondent to pay her back wages and other remunerations from the date that she was stopped from reporting for duty along with compensation decided by the Court.[D.B.D Rajapakshe “Prashakthi” Ratmalwala v. Y. Abdul Majeed, SC. FR Application No. 418 of 2015, decided on 12-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Constitutional Court of Zimbabwe: While scrutinizing the constitutionality of the policy and actions of the education authorities in compelling schoolchildren to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country, the 9-Judge Bench of the Court held that the policy of the education authorities which compels schoolchildren, regardless of religious affiliation, to salute the national flag and to say the words “Almighty God, in whose hands our future lies” as part of the recitation of the schools’ national pledge of allegiance violates Section 60(1) of the Constitution which enshrines the Right to Freedom of Religion and the Right to Freedom of Religion of Children who belong to faiths that do not embrace the belief in the existence of God or in the existence of a God at all.

Facts and Contentions: In 2016, the Ministry of Primary and Secondary Education introduced the pledge wherein all school students were compulsorily required to memorise and recite at assemblies every school day without any exemption. The primary purpose and objective of the pledge was to “inculcate into schoolchildren of feelings of patriotism and other ethical precepts, such as honesty and dignity of hard work”. The intent behind the introduction of the said pledge was secular in nature. Compulsory recitation of the pledge in the current form by children at the private and public infant, primary and secondary schools was the chosen means by which the governmental policy behind the pledge is enforced.

The pledge was challenged by a devout member of the Apostolic Faith Mission (AFM). He approached the Court alleging that-

  • The pledges as formulated violate his children’s fundamental right to freedom of religion, in that they are compelled to salute the national flag contrary to their religious belief.
  • The compulsion on his children to salute the national flag violates his parental right to determine, in accordance with his religious belief, his children’s moral and religious upbringing.
  • by compelling all schoolchildren, regardless of religious persuasion, to say the words “Almighty God, in whose hands our future lies” in the recitation of the pledge the first respondent violates the fundamental right to freedom of religion of the schoolchildren who do not share the religious belief embodied in the words.

The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God’s displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag. The applicant does not reject the national flag. His case is that the use of the national flag as symbolism for the legitimate secular purpose does not have to take the form of a coerced salutation of the flag, which he says he genuinely believes is a form of worshipping of the flag

Issues: Given the nature of the dispute at hand and the tussle between religion and secularism, the 9-Judge Bench, headed by Luke Malaba, C.J., framed the following issues-

  • Whether the policy and the actions of compelling the applicant’s children, who hold a religious belief that saluting a flag is “worshipping a graven image” contrary to a fundamental doctrine of their faith, infringed their right to freedom of religion.
  • Whether the policy and the actions of the education authorities of compelling the applicant’s children to salute the national flag infringed the applicant’s parental right to determine the upbringing of his children according to his religious belief.
  • Whether the policy and the actions of the education authorities of compelling all schoolchildren, regardless of religious affiliation, to say the words “Almighty God, in whose hands our future lies” infringed the right to freedom of religion of children who do not belong to religions that embrace the belief in the existence of God or in the existence of a god at all.

Section 60 of the Constitution of Zimbabwe contains provisions vis-à-vis the Right to freedom of conscience, freedom of thought, opinion, religion or belief.

Important Observations by the Court

The Bench delved in-depth into various facets of secularism, patriotism and religious freedom. Some of the important areas upon which the Court focused were-

Regarding the interpretation of the Constitutional Provisions- Sections 60(1) and 60(3): It was observed that Section 60(1) of the Constitution is based on the universal principle that every person has inherent fundamental rights and freedoms by virtue of being human. Constitution recognises and embraces the fundamental principle that every person has a conscience which is an experiential and spiritual phenomenon that compels a person to commit himself or herself unreservedly to an ideal. Freedom of conscience must be interpreted broadly to reflect the true meaning of the concepts used to denote the area of its operation. State must adopt a position of neutrality in its relationship with individuals in respect of matters of religion. While referring to Supreme Court of India’s decision in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615, the Bench noted that as long as a court of law finds that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of Section 60(1) of the Constitution as a religious belief. Vis-à-vis, Parental Right, the Court observed that Section 60(3) of the Constitution should not be interpreted to mean that the parental right authorises one person to dominate or control the life of another to satisfy his or her own religious interests.

The compulsion suggests to the schoolchildren who hold polytheistic religious beliefs or non-theistic beliefs that their beliefs are inherently less religious than the theistic ones embraced by the pledge. At best, there is an unconscious bias against non-theistic religions and their beliefs in the adoption as part of the pledge a statement that has as its content acceptance in the existence of God and exaltation of His powers. Children are impressionable individuals and vulnerable to outside influences because of their age and level of maturity. The impression likely to be created in the children’s minds would be that for one to become the ideal person who lives according to the values and principles espoused by the pledge, one has to be a believer in the features of the monotheistic religions represented in the words “Almighty God, in whose hands our future lies”. The children may think that one may not embrace the values of patriotism and national identity without at the same time being a holder of the belief in the existence of God.

Regarding infringement and limitation on Fundamental Rights- The Bench observed that Section 86(3) of the Constitution makes provision for fundamental human rights which are non- derogable and right to freedom of religion is not one of them. The justification for limitation of fundamental human rights and freedoms is the principle that they must be reasonably exercised and with due regard for the rights and freedoms of other persons. Freedom of religion guaranteed under S. 60 has as its point of departure the view of a human being in the Constitution as a responsible personality, developing freely within the social community. It can be restricted by the Legislature by a law of general application with constitutional anchors and sufficient safeguards for the rule of law when community goods are endangered. The limitation of a right must be a result of a meticulous and extensive legislative process and such limits should be interpreted narrowly, thereby respecting the importance of the fundamental right or freedom sought to be protected and enforced. “The Executive cannot introduce measures which have a direct impact on fundamental rights secured by the Constitution without there being a law that authorises such action”. There must be a balance between respecting the religious freedom of the schoolchildren objecting to participation in the compulsory recitation of the pledge and the legitimate public interest in having the values of patriotism.

Preamble to the Constitution- Its role and connection to Fundamental Rights: The Court while deliberating upon the importance of the Preamble in a country’s Constitution referred to the 13 Judge Bench decision of the Indian Supreme Court in Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225, wherein the importance of Preamble as the embodiment of the great purposes and objectives underlying the provisions of the Constitution was observed.

It was noted by the 9 Judge Bench that in Zimbabwe, the Preamble to the current Constitution can best be characterised as ceremonial and is not a numbered section in the body of the Constitution. It is not regarded as an integral part of the law as it does not create rights and obligations. The law is independent of the Preamble. The current Preamble merely sets out the history behind the Constitution’s enactment, as well as the nation’s core principles and values.

Concluding Remarks: Concluding the discussion, the Bench stated that, “Patriotism is a heritage that every nation must pass on to its children if it has pride in itself as an independent and sovereign nation of people who share common values and aspirations enshrined in a constitution which defines its destiny”. However, they also observed that, compulsion, as employed in the pledge, is not a permissible means for achieving the objective of inculcating in schoolchildren feelings of patriotism. “There is a tension between negative and positive religious freedom. The tension cannot be neutralised by the elimination of the reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies” from the pledge. The elimination of these elements from the pledge would infringe the right to freedom of religion of those children and their parents or guardians who want the saluting of the national flag and the saying of the religious words in the course of the recitation of the pledge to be observed “. [Mathew Sogolani v. Minister of Primary and Secondary Education, Judgment No. CCZ 20/20, decided on 28-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together


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Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Case BriefsForeign Courts

Lahore High Court: While deliberating upon the writ petitions challenging the use and conduct of ‘virginity tests’ especially “Two-finger Test” and “Hymen Examination” in cases of rape and sexual abuse, Ayesha A. Malik, J., held that the virginity tests, carried out for the purposes of ascertaining the virginity of female rape or sexual abuse victim, is unscientific and has no medical basis, therefore it is of no forensic value in cases of sexual violence. It was further held that the virginity tests offend the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.

 Contentions: The petitions were brought before the Court by a group of diverse women, who have been working in the public sphere and one of the members of the National Assembly of Pakistan. They stated before the Court that the virginity tests are done upon a victim in order to ascertain whether they are sexually active. The petitioners put forth the following contentions –

  • There is no medical or scientific basis to continue with virginity testing; that it violates the fundamental rights of the female victims such that it denies the female victim her fundamental rights of dignity and privacy that she is guaranteed under the Constitution.
  • After the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, tests are irrelevant for the charge of rape or sexual abuse. The virginity tests are neither necessary nor reliable for the purpose of investigation into the incident of rape or sexual abuse.
  • Even though the consent of the victim is obtained before conducting the test, however the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly, with sufficient sensitivity, as to what the examination entails.
  • The medico-legal examination reports rely on words such as “habituated to sex” or “not a virgin” which are irrelevant for the purposes of the incident under investigation and such derogatory language stigmatizes the victim, causing social and personal trauma. There is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report.
  • Pakistan is a signatory to several international treaties like UDHR, ICCPR, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which denounce virginity testing. Moreover, Pakistan has also signed and ratified Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two-finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender.

The respondents (Federation of Pakistan and Province of Punjab) did not dispute the contentions of the Petitioners to the extent that the two-finger test should not be conducted. They stated that the matter is under consideration with the competent authority and guidelines are in the process to be framed. It was clarified that the two-finger test is not conducted unless it is deemed necessary and that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury.

Upon perusal of the petitioners’ contentions and statements provided by the respondents vis-à-vis the prevalent scenario and after detailed scrutiny of the relevant Guidelines/ SOPs; the Court observed the Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020 still calls for a virginity test albeit by confusing the issue rather forbidding it (it allows a “per-vaginum examination” where required and per-vaginum examination is understood to mean the two finger test). It was noted that a bare reading of 2020 Guidelines makes it clear that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officer’s opinion or the court’s opinion on the virtue and character of the victim. Regarding the use of phrases like “habituated to sex” and “not a virgin” in medico-legal reports the Court noted that, “Often enough the opinion of the medical officer is carried into the judgments of the court and language such ashabituated to sex”, “women of easy virtue”, “habitual to sexual intercourse”, “indulging in sexual activities” are used to describe the victim. The basis being that a woman habituated to sex is likely to have raised a false charge of rape or sexual abuse”.

The High Court also referred to several decisions rendered by the Indian courts, most notably the Supreme Court of India’s judgment in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that- the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity; therefore, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. Judgments delivered by Allahabad HC in Akhtar v. State of U.P., 2014 SCC OnLine All 8922 and Gujarat HC in State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114  were also referred to.

It was also noted that Pakistan has signed and ratified several relevant International Treaties which cast an obligation upon the Government to ensure that all necessary steps are taken to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence.

Judge noted that, “Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim”.

With the aforementioned observations, the Court made the following declarations-

  • Virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution, 1973.
  • To the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the virginity tests are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse.
  • The Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence.

[Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together


Image Credits: DAWN

Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., while addressing the present matter made an observation that:

The alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife is not to be gone into in the present proceedings which are only regarding providing of protection to the petitioners.

In the instant case, petitioners were both Muslim. Petitioners solemnized their marriage as per Muslim rites and rituals and a translated copy of the Nikahnama has been attached.

Marriage was solemnized against the wishes of respondents 4 to 7 who are the relatives of petitioner 2.

Petitioners Counsel submitted that the petitioners apprehended danger to their life at the hands of respondent 4 to 7.

Counsel for the petitioners submitted that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.

Bench noted that the girl s aged more than 18 years in the instant case. In the decision of Yunus Khan v. State of Haryana,  [2014(3) RCR (Criminal) 518] it was observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision which article reads as under :

“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”

Court held that both the petitioners in the instant were of marriageable age as envisaged by Muslim Law. The issue in hand was not the validity of the marriage but the fact that the petitioners were seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India.

Bench held that:

The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed.

Merely because the petitioners have got married against the wishes of their family members they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.

In view of the above discussion, Court disposed of the petition with a direction to Superintendent of Police to take the necessary action as per law.[Jakar v. State of Haryana,  2020 SCC OnLine P&H 2266, decided on 16-12-2020]


Advocates who appeared before the Court:

Vishal Garg Narwana, Advocate, for the petitioners.

Naveen Singh Panwar, DAG, Haryana.

Vipul Aggarwal, Advocate for respondent 4

Sunita Gupta, Advocate for Warisa (first wife of petitioner 1)

OP. ED.SCC Journal Section Archives

— Indian Supreme Court in the process of transition — Position till early 1970’s and after — Concepts used to avoid change stated — Activist judges — Contribution of Justice Bhagwati — Some highlights of transformation of Indian jurisprudence at the instance of Justice Bhagwati in the judicial process — PIL is a major strategy in the area of legal aid to the poor — Greatest Contribution of Chief Justice Bhagwati — Decisions on Legal Aid — Observations of Justice Bhagwati in Hussainara Khatoon (1980) and Suk Das (1986) — Major thrusts gave to PIL by Justice Bhagwati briefly examined — Observations in Judges transfer case (1981) quoted — Letter petitions in PIL — Contribution of Justice Bhagwati in PIL is certainly enormous — Judicial employment and Human Rights with social justice — Inter-relation of Parts III and IV of the Constitution of India — Case laws referred to and discussed in this regard — Facets of Art. 21 — Case laws cited — Revolutionary interpretation to Art. 21 by Justice Bhagwati — Judicial Reforms and People’s participation — Lok Adalats — Contribution of Justice Bhagwati — Concluding note — Bhagwati era will find a special place for its signal contribution to human rights development and judicial creativity in the cause of social justice

The Indian Supreme Court is in the process of transition. Till early 1970s the Court with few honourable exceptions, acted as an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of judicial power to promote social change under the Republican Constitution. The natural inclination of lawyers and Judges was to look for precedents in the “Mother Country” and to interpret a revolutionary document like the Constitution of India in the light of a socio-economic philosophy alien to our freedom movement and the aspirations of a liberated people. Concepts such as “Rule of Law”, “Judicial Restraint”, “Separation of Powers”, “Supremacy of Fundamental Rights over Directive Principles”, “Independence of Judiciary”, “Contempt of Court” and “Certainty in Law” were used conveniently to avoid change wherever possible, delay it whenever inevitable and dilute it as far as practicable. The resultant legal culture was not very different from those of pre-Independence days.

Read more..


Note: This article was first published in Supreme Court Cases Journal  (1987) 1 SCC J-1. It has been reproduced with the kind permission of Eastern Book Company.

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has directed that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons, as of now. The State Governments and Union Territories can do so only when any direction is issued by the competent authority under the Disaster Management Act, 2005.

The direction came after a PIL was filed before the Court seeking an end to the practice of authorities affixing posters outside residences of Covid-19 positive persons who are under home isolation. The Petition further prayed that directions be issued to stop publishing the names of COVID-19 positive persons by the official of the Health Department in the States and Union Territories and also to stop freely circulating their names in welfare associations of colony and apartment complex which are serious violation of fundamental rights, right to privacy and right to live with dignity.

However, Solicitor General Tushar Mehta brought the Court’s attention to the guidelines dated 02.07.2020 and submitted that in the said guidelines which have been issued by the Government, Ministry of Health and Family Welfare for home isolation, there are no guidelines for pasting of posters outside the residence of COVID-19 positive persons. The letter issued by the Department of Family Welfare dated 19.11.2020 to Additional Chief Secretaries/Principal Secretaries/ Secretaries(Health) All States/UTs that the Government of India, Department of Health and Family Welfare, Ministry of Health and Family Welfare Guidelines also does not contain any instruction or guidance regarding affixing posters or other signage outside the residences of those found COVID-19 Positive.

“… neither any such direction has been issued by the Government of India nor it is obligatory to any State or Union Territory to paste the posters outside the residences of COVID-19 positive persons.”

[Kush Kalra v. Union of India, 2020 SCC OnLine SC 1017, decided on 09.12.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Advocate Chinmoy Pradip Sharma

For Respondent: Solicitor General Tushar Mehta

For NCT OF Delhi: Advocate Chirag M. Shroff

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”

In order to bring about an effective solution to the present stalemate between the protesters and the Government of India, the Court suggested the constitution of a Committee comprising of independent and impartial persons including experts in the field of Agriculture but said that it would do so only after hearing all the necessary parties. The Court has, however, made clear that the pendency of the matters will not prevent the parties from resolving the issue amicably.

The Court is hearing the case wherein the residents of NCT of Delhi/Haryana, having a population of more than two million people, have claimed that the manner in which the protest is being carried on is seriously inhibiting the supply of essential goods to the city because of restrictions on the free movement of goods vehicles. According to the petitioners, this will result in a sharp increase in the prices of goods which would be difficult for people to bear in these times of Pandemic. They say,

“… no fundamental right is absolute and it would be necessary for the Court to determine the contours of the right of free speech and expression involved in the farmers’ protest and the extent to which this right can be exercised consistently with the rights of other citizens.”

The respondents, on the other hand, claim that the roads are blocked by the police in order to prevent the entries of the protesters/farmers to the city of Delhi.

Yesterday, the petitioners were allowed to serve copies of these petitions upon the impleaded farmers’ Associations and today the Court was to hear the farmers who are agitating at the Borders of National Capital Region of Delhi. However, none of the impleaded respondents-farmers’ associations have appeared today though the petitioners claim to have informed them over their respective mobile/whatsapp numbers.

The Court will now take up the matter after winter vacation. The parties, however, liberty to move the Vacation Bench if necessary. On the next date of hearing, the parties have been asked to submit suggestions about the constitution of the Committee.

The farmers’ protest is mainly directed against the three laws:

(1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020,

(2) Essential Commodities (Amendment) Act, 2020 and

(3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.

Aforesaid laws are also under challenge before the Supreme Court.

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032, order dated 17.12.2020]


For Petitioners: K.Parameshwar, AOR

For Union of India: Attorney General K.K. Venugopal

For Punjab: Senior Advocate P. Chidambaram

For U.P.: Advocate Garima Prashad

For Bharatiya Kisan Union: Advocate A.P. Singh.

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]