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

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

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

Here are some excerpts from the Judgment:

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

-Justice HR Khanna


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

-Justice SM Sikri, Chief Justice of India


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

-Justices JM Shelat and AN Grover


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

-Justices KS Hegde and AK Mukherjea


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

-Justice DG Palekar


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

-Justice P. Jaganmohan Reddy


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

-Justice YV Chandrachud


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

-Justice KK Mathew


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

-Justice MH Beg


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

-Justice SN Dwivedi


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

-Justice AN Ray

Case BriefsForeign Courts

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

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

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


*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

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

Conversion to Islam

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

Fear Psychosis

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

Protection sought

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

The above results in violation of her fundamental rights.

Court admitted the petition and issue notice to the respondents.

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

Hot Off The PressNews

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

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


         [Source: The Times of India]

Case BriefsHigh Courts

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

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

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

Issue for consideration in the present petition is that:

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

Analysis of High Court

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

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

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

Court added to its opinion that,

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

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

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

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

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

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

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

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

Decision

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

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

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

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

Fraternity

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

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

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

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

Case BriefsForeign Courts

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

The facts of the case are as follows:

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

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

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

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

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

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

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

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

The two questions framed by the Court were:

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

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

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

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

Case BriefsForeign Courts

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

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

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

Case BriefsForeign Courts

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

Case BriefsForeign Courts

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

Case BriefsForeign Courts

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of A. Muhamed Mustaque, J. dismissed a writ petition while giving a detailed analysis and clarity on dominant interest and subservient interest.

The present petition was filed by girl students belonging to the Muslim community with their plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in. Since they were unable to follow the prescribed dress code, they filed the present petition.

In Court’s opinion, as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution, therefore the Court had to balance the competing Fundamental Rights for resolving the present issue.

Analysis:
By taking reference of the decision from the case Amnah Bint Basheer v. CBSE, 2016 (2) KLT 601, the Court stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice. Further, it was also noted that the right to establish, manage and administer an institution is equally a Fundamental Right.

Fundamental Rights are either in the nature of the absolute right or relative right. Court in the present case examined the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance.

“Competing Rights, if not resolved through the legislation, it is a matter for judicial adjudication.”

Court had to balance rights to uphold the interest of the dominant rather than the subservient interest. In the present case, the management of the institution is the dominant interest, as if the management is not given free hand to administer and manage the institution that would denude their fundamental right.

“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”

Thus, the High Court held that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt as it is purely their domain for any decision and Court cannot direct the institution to consider such a request. The writ petition was dismissed. [Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, dated 04-12-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of R.F. Nariman and Indu Malhotra, JJ. dismissed writ petitions filed by army personnel — Major, Lieutenant, and Sepoy — against their transfer from Army Service Corps. to operational units.

The petitioners challenged the transfer as violative of their fundamental rights under Article 14 and 21. They relied on the Supreme Court decision in Union of India v. P.K. Choudhury, (2016) 4 SCC 236. They submitted that in the case mentioned, the Court held that ASC is a non-operational unit based on the stand taken by Union of India. While the respondent-Union of India and Military Secretary Branch — assailed the maintainability of the petition. Furthermore, it was contended that an employee has no legal right, much less a fundamental right, to be posted in a particular place or to be transferred to a place of his choice.

The Supreme Court gave due consideration to the submissions made by the parties. It referred to the composition of Army to understand the contextual matrix of the case. It was seen that the ASC is a vital stream primarily responsible for ensuring the provisioning, procurement, and distribution of supplies. The Court held that the petitioners had failed to show how their fundamental rights were violated. Posting and transfers are a necessary incident of service. The case of P.K. Choudhury was distinguished as it was concerned only with promotions and not transfer. The petitioners did not make any submission that the posting was in violation of any statutory rule, executive policy or instruction. Furthermore, the Court referred to the Oath administered to all army personnel alike at the time of commissioning the relevant portion of which reads — “I hereby solemnly swear that I will … go wherever ordered, by land, sea or air…”.  The Court thus held that army personnel are duty bound to serve wherever they are ordered to. In view of the above, the petitions were dismissed. [Amod Kumar v.  Union of India, 2018 SCC OnLine SC 1372, decided on 06-09-2018]

Hot Off The PressNews

After hearing the much-debated Aadhaar matter for 38 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ has reserved the judgment. The hearing had begun on January 17, 2018.

Below are the highlights from the arguments advanced on the last day of the Aadhaar Hearing:

  • Senior Advocate Gopal Subramanium: 
    • Is Aadhaar really affirmative action? Is the act an enabler or is it in the guise of enabler? The act is not an instrumentality to deliver services. It is only a means of identification. We have to read the true purpose of law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act.
    • Aadhaar Act does not have a proper purpose. A claim to a proper purpose is not proper purpose. Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services.
  • Chandrachud, J: An act like Aadhaar needs a regulator which is absent.
  • Gopal Subramanium: The state seeks to take away our data without the backing of a strong data protection framework. Words like “grant of subsidies, benefits and services” are expressions of condescension in Section 7. They are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. Should the State logically be the holder of such information?
  • Chandrachud, J: Is “subsidy” a benefit or a right, that has to be decided.
  • Gopal Subramanium: 
    • Private players have access to Aadhaar data. There is no regime of protection. There is no vertical protection.
    • Section 7 has been interpreted to be mandatory. Can’t make citizens subservient under section 7 and call rights, benefits.
    • The Act is to be struck down completely as it fails all three tests laid down in Puttaswamy. There’s no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there’s no proportionality.
    • This Court consciously overruled ADM Jabalpur. The doctrine of possibility of misuse does not apply here because there is actual denial of rights in the case of Aadhaar.
    • Aadhaar Act should be completely struck down and the architecture and database must be destroyed.

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  • Senior Advocate Arvind P. Datar:
    • Aadhaar cannot be a money bill. At most, it can be a financial bill of category 3 under Article 117(3) of the Constitution.
    • Doctrine of severability will not apply to Aadhaar, since the doctrine is only applicable to validly enacted laws.
    • Mohd.Saeed Siddiqui and Yogendra Jaiswal should be overruled. Finality of speaker’s decision doesn’t mean that the bill cannot be subject to judicial review.
    • Under PMLA, Aadhaar is not just confined to banks but has gone beyond it’s scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things.
    • Only magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise. Aadhaar is not justified under Article 300A of the Constitution.
    • Linking Aadhaar will never solve problems of money laundering and black money because the source of such money is different. This is colorable exercise of power. Black money and money laundering is being used as a ruse to collect people’s biometrics.
    • Section 57 should go completely. Anything outside Section 7 is completely violative of the Puttaswamy judgement. S.139AA of the income tax act is inconsistent with the Aadhaar Act.
    • There should be an option of opting out of Aadhaar.

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  • Senior Advocate P. Chidambaram:
    • AG’s reading of the word “only” in Article 110(g) is erroneous. There is no need to tamper the language of the Article.
    • Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1) must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision.
    • The implications of passing a non money bill as a money bill are very serious: One half of the parliament is virtually disabled from making any amendments. It denudes the highest constitutional authority of the country, the President of India.
    • There is no provision in the Constitution which gives the court the power of severability in case of an invalidly enacted legislation. The Australian constitution has such a provision.
    • The bill was passed without the effective participation of the Rajya Sabha and without assent from the President. The court cannot save a legislation that is fundamentally unconstitutional.
    • Pith and Substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. Only limited to entries of legislative lists.
    • The Court must strike down the Aadhaar Act as it is not a money bill. It is a mockery of Article 110.

_________________________________

  • Senior Advocate K.V Vishwanathan: 
    • Respondents’ argument that the least intrusive method is not a facet of proportionality is completely erroneous. You can’t balance your own bundle of rights. Balancing Right to food and right to privacy is wrong.
    • Section 59 doesn’t protect Aadhaar during the time it was not an Act. Its a wrong submission made by the state. To rely on the exception handling mechanism is ultra vires the Act.
    • If it’s my rights and their duty, then they cannot discharge their duty by subjecting the poor and downtrodden of this country to a technological menace.
    • There can be no data collection and digitalization of records. The underpinning of the Aadhaar Act is authentication of individuals.
    • Harmonization of rights is being mis-applied by the respondents.

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To read the highlights from the rejoinder submitted by the petitioners, click here and here.

To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin

Hot Off The PressNews

On the penultimate day of the Aadhaar hearing, Senior Advocate Shyam Divan continued with his rejoinder before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from the arguments advanced on Day 37 of the Aadhaar Hearing:

  • Shyam Divan:
    • We’re linking Individuals Aadhaar with their bank accounts and mobile numbers without their permission. It’s called inorganic seeding. Without statutory backing UIDAI collected biometrics of hundred crore people which is the entire population of Europe and North America.
    • From the citizens perspective, there’s authentication tower and enrollment tower. IP address, ID, date, time and purpose of authentication can be known because of the architecture of Aadhaar. Source code of the Aadhaar software belongs to foreign companies. It is impossible to live in contemporary India without Aadhaar.
    • Aadhaar linking is not a one time thing. It’s a continuous process.
    • ID4D 2015 report was relied on by the Attorney General KK Venugopal. World bank had partnered with Accenture to write this report. Therefore the report is not impartial.
    • Collecting biometrics was ultra vires the 2009 notification. Assuming the notification was an act of parliament, even then it would’ve been ultra vires for collecting something as intrusive as biometrics. Also there was no informed consent and penalties that time.
    • UIDAI has been flouting the interim orders of the SC. Aadhaar schemes under section 7 should not involve children, merit education. Exclude schemes for rehabilitation and involve stigma like bonded labourers, exclude food and nutrition, matters related to health.
    • There cannot be retrogression of human rights.
    • Sarva shiksha Abhiyan and mid day meal schemes requires children to furnish Aadhaar to avail benefits of these schemes. This should be completely excluded from section 7. There should be no conditions placed on children to avail these benefits.
    • Aadhaar was even required to participate in essay competition. This is way beyond any reasonable limit of proportionality.
    • Highly vulnerable groups should not be mandated to provide Aadhaar. Even Ujjwala scheme for women rescued from trafficking requires Aadhaar.
  • Sikri, J: The problem is that wrong beneficiaries receive such benefits.
  • Shyam Divan:
    • Even tuberculosis patients were mandated to disclose Aadhaar numbers. 
    • Please don’t consider Section 7 by itself but the overall impact of the Act. This is an over extension of the coercive powers of the State. Section 7 beneficiaries are demoted to the status of second class citizens. Aadhaar authentication is a violation of personal autonomy.
    • Also, Aadhaar is probabilistic. Non retrogression of rights is an important principle of human rights law.
    • This act has a huge impact on human rights. Constitution has an intricate scheme to defend part III with the final defence lying with the SC. Cannot bypass wisdom of Rajya Sabha and Article 111 to pass Aadhaar as a money bill.
    • Demographic information in many situations is also important and should not be trivialised. People must have the choice to preserve and protect it.
    • The architecture of Aadhaar with full traceability enables mass surveillance, and profiling. There are a lot of lawyers who are doing this pro Bono because they believe this is a huge constitutional matter. There’s no commercial interest.
    • The Aadhaar Act will not survive the first five words of the preamble, “We the people of India”.

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  • Senior Advocate Gopal Subramanium:
    • State functionaries have a continuing constitutional obligation. If the obligation is not met, it cannot be reversed and the burden of proof cannot be on Individuals to establish their identity.
    • Do children want fake mid day meals? Do poor disabled people want to fake their identity?
    • Section 33 will allow sharing of authentication records. Footprints of ones activities are known by the State. Is there any nexus between such knowledge of the State and delivery of services?
    • You need all the other identity documents like ration cards, along with Aadhaar number. A person can ping the authentication machine three times and get rejected and then get accepted on the fourth ping. How can we subject citizens to this?
    • Is Aadhaar really for the oppressed? Because everyone is now supposed to link it with banks, telecom etc. What exactly is the compelling state interest that has been demonstrated?
    • Admissions to schools is denied for lack of Aadhaar. The legislation is not an enabler, and not used for empowerment. Therefore, it falls on all grounds that is Articles 14, 19 and 21.
    • Data of citizens can be used for political exercise. Aadhaar’s preponderant nature is likely to invade. Aadhaar alters the symbiotic nature between state and citizen.
    • This law is a fetter on self actualization. However noble your intentions maybe, if you step out of the boundaries of the Constitution, then there’s no saving such legislation.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin

Hot Off The PressNews

On Day 36 of the Aadhaar Hearing, Attorney General KK Venugopal concluded his arguments on the issue of Aadhaar Act, 2016 being introduced as Money Bill before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. It also marked the end of the submissions of the State and the petitioners began rejoinder post lunch.

Below are the highlights from the arguments advanced on Day 36 of the Aadhaar Hearing:

  • Attorney General KK Venugopal: Article 110(1)(g) is a standalone provision. There can be a bill that does not relate to 110(1)(a)-(g) but is still covered independently under 110(1)(g). Therefore, the Aadhaar bill did not have to to be passed by the Rajya Sabha. RS could only make recommendations.
  • CJI: Section 57 is an enabling provision that allows state legislature to introduce Aadhaar for various services. The state legislature may or may not introduce it as a money bill. It’s nature will then be examined if it’s challenged in a court of law.
  • AG (On Aadhaar SIM linking):
    • Aadhaar is not mandatory to obtain a new connection ,but there will be no chance of forgery and fraud if Aadhaar is linked to SIM card.
    • Aadhaar was made optional as per the direction of the Supreme Court but it will only remain optional till the final disposal of the matter. (SC had denied a few days ago that it had issued any direction to make Aadhaar mandatory for sim in the lokniti case)
    • We are recognizing the interim order passed in the Lokniti Foundation case, and hence making Aadhaar optional for the time being.
    • No core biometrics data is shared under the Aadhaar Act.
    • The State takes offense to the fact that words such as “electronic leash” and “concentration camps” were used.

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  • Senior Advocate Shyam Divan (Rejoinder): 
    • First time in a democracy, something like CIDR has been implemented. SC is at the vanguard of balancing human rights and new technologies.
    • Cannot have a surveillance state in this democracy. Identity of the person, date and time, and location are the three elements of surveillance.
    • On March 9, 2018, state filed an affidavit appending an expert report by Manindra Agarwal of IIT kanpur who is also a member of technology and architecture review board of Aadhaar along with the security review board.
    • UIDAI’s presentation report says that biometrics database is accessible by third party vendors like Morpho, Accenture, identity solutions and one more. Breach of verification log leaks location of places where an individual did authentication.
    • The report admits that tracking of location of a person is possible. Prof. Agarwal has admitted that last five years location data can be accessed with the verification log. Even without the verification log, current location can be tracked. UIDAI knows the location of an individual. Third parties can access the approximate location if the verification log is breached.
    • Experts on both sides now agree that surveillance is possible. It’s not just a privacy issue, it’s a limited government issue. How far does the coercive power of the state extend? Cannot extend to creating an infrastructure that is capable of tracking people.
    • Can we have a law or system that sets up an authority that does not comport with our democracy? I’m speaking about a rudimentary level of surveillance. I’m not even talking about commercial surveillance.
    • State has created a structure of not just CIDR but AUAs and KUAs where all information is being tracked including location. In terms of power and control, the existence of a body like UIDAI is beyond my wildest imagination.
    • The Maninder Agarwal affidavit is a tipping point in this case. He’s careful and says that there are laws to protect us. SC cannot permit something so deeply flawed to function in our country.
    • Is this a case of the emperor who had no clothes? On the point of balancing, I would submit that this is an impairment of Part III of the Constitution. This is a moment in time to take a firm stance.
  • Chandrachud, J: There’s an inexorable march of technology. What are the kind of safeguards that we should take while balancing these rights is something we have to consider. Not like there’s quantitative lack of food in our country. The problem is that people can’t access that food. It is the duty of the State to look into this aspect also.
  • Shyam Divan:
    • Choice and option is important in a democracy. (Jokingly says that Mr. Zoheb Hossain also does not have an Aadhaar.)
    • UIDAI in their answer have said that they do not take responsibility for correct/incorrect identification. They only provide a matching system. It’s a self certification/ declaration system. Please consider this in the context of opening and operating bank account.
    • UIDAI takes no responsibility for correct name, address, date of birth Please consider if this meets minimum standard of rationality. UIDAI hasn’t answered how many authentication rejections have taken place. If you’re successful of performing five authentications in a year, it’s considered hundred percent successful.
    • UIDAI was asked if they verify if illegal immigrants are given Aadhaar. As a 2013 SC order said that illegal immigrants should not get Aadhaar.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin