Case BriefsSupreme Court (Constitution Benches)

“The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream. At the same time, various castes by and large remain where they were, and they remain unequals, are they destined to carry their backwardness till eternity?”

Supreme Court: After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has referred the matter to a larger bench.

While doing so, the Court observed:

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal. “

The 5-judge bench in EV Chinnaiah judgment had held that the Scheduled Castes form homogenous classes and there cannot be any sub¬division. On the application of the Indira Sawhney judgement, the bench said,

We do not think the principles laid down in Indra Sawhney case, 1992 Suppl. (3) SCC 217, for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment itself ha specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Caste and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.”

In Indra Sawhney judgment, within those identified as backward classes, exclusion had been permitted to those who are socially and educationally advanced.

KEY HIGHLIGHTS OF THE OBSERVATIONS MADE BY THE COURT WHILE REFERRING THE MATTER TO A LARGER BENCH:

On insertion of Article 324A inserted by the Constitution (One Hundred and Second Amendment) Act, 2018, w.e.f. 14.8.2018

Article 342A’s provisions are pari materia to Articles 341 and 342 dealing with Scheduled Castes and Scheduled Tribes. Under Article 342A  the President is empowered to issue public notification with respect to socially, and educationally backward classes which shall for the Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory and the Parliament may by law has the power to include in or exclude from the Central list of socially and educationally backward class. The power of variation can be exercised only once.

The provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. The authoritative pronouncement is required with respect to the effect of   aforesaid   provisions of the Constitution and whether subclassification is permissible only with respect to the socially and 59 educationally backward classes covered under Article 342A read with Article   366(26C) and not with respect to Scheduled Castes and Scheduled Tribes covered under similar provisions, i.e., under Articles 341 and 342 read with Article 366(24) and 366(25) respectively.  The question of immense public importance arises in view of the insertion of Article 342A.

On whether sub­-classification amounts to exclusion under Article 341(2)

All the castes included in the list of Scheduled Caste are given the benefit of reservation as per representation in service, but only specific percentage fixed for preferential treatment to a caste/class which was not able to enjoy the benefit of reservation on account of their being more backward within the backward classes of Scheduled Castes. The preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of the castes in the list of Scheduled Caste under Article 341(2). Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor.

“Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating  that there is inequality inter se various castes included within the list of Scheduled Castes.”

On the change in socio-economic status of some castes

Constitution aims at the comprehensive removal of the disparities. The very purpose of providing reservation is to take care of disparities. The Constitution takes care of inequalities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Various reports indicate that Scheduled Castes and Scheduled Tribes do not constitute a homogenous group.

“The interpretation of Articles 14, 15, 16, 338, 341, 342, and 342A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.”

The caste or group or sub¬group continued exactly as before in the list. It is only those persons   within that group or sub¬group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.

“The million-dollar question is how to trickle down the benefit to the bottom rung; reports indicate that benefit is being usurped by those castes (class) who have come up and adequately represented. It is clear that caste, occupation, and poverty are interwoven.  The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures.”

When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub¬classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided. It involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil the very purpose of the constitutional mandate of equal justice to all.

“In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread.  The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class.“

[State of Punjab v. Davinder Singh, 2020 SCC OnLine SC 677, decided on 27.08.2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., quashed and set aside the unreasonable restriction placed by the State of Maharashtra on prohibiting the actors, crew members, etc. who are above the age of 65 years from being present at the site of the shooting of films/television series/Over The Top Media (OTT) in light of the same being discriminatory.

Petitioner is an actor by profession who had challenged the condition imposed by the Government of Maharashtra’s Resolution according to which persons above the age of 65 years are prohibited from remaining present at the site of the shooting of films/television series/Over The Top Media (OTT).

Discriminatory and Arbitrary

The government resolution is discriminatory, arbitrary and violative of Article 14 of the Constitution of India because at the time the same was issued, Central, as well as the Maharashtra Government, had relaxed the general prohibition on the movement of persons above the age of 65 years.

Right to Carry on Trade and Occupation

As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry. It is also submitted that the impugned condition is an unreasonable restriction on the petitioners’ right to carry on their trade and occupation, as also the impugned condition deprives the petitioner of his right to earn a livelihood with dignity.

Government Pleader for the Respondent State, Purnima H. Kantharia submitted that the Government of Maharashtra’s Resolution is based on Centres’ order passed under the DM Act.

Further, he added that, the restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable.

The restriction is not absolute. Persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc.

Until the Central and State Governments relax the guidelines, the Respondent is bound to strictly implement the aforesaid Orders issued under the DM Act, as the MHA Orders specifically provide for strict enforcement of the Lockdown Orders by the respective State Governments.

“…though the Impugned Condition reads as a prohibition, no coercive action will be taken against anyone above the age of 65 years who chooses to remain present at the site of the shooting of films/television series / OTT. The prohibition is issued in the interest of the health and safety of persons who are above the age of 65 years and is to be read as such.”

Analysis and Decision

Bench while analysing the facts and circumstances of the case, started while stating that Sections 38 and 39 of the DM Act empower the State Government to take measures to deal with the disaster at hand, which in this case is the Covid-19 pandemic.

Keeping the above in mind and being fully conscious of the hardship and risks posed by the Covid-19 pandemic, Court first considered the challenge to the impugned condition under Article 14 of the Constitution of India.

Intelligible Differentia

In Court’s opinion, impugned condition was not based on any intelligible differentia.

Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders.

Thus, there is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities and no explanation on the said aspect has been given by the State Government.

Hence, Impugned Condition, therefore, cannot be sustained in view of the well-settled principles enunciated under Article 14 of the Constitution of India.

Further, the said impugned condition also failed to take into consideration the relevant material, namely the relaxation contained in orders dated 30th May 2020 and 31st May 2020 issued by MHA and the Government of Maharashtra respectively, which reads as an advisory for persons above the age of 65 years.

Impugned Condition in light of Article 21 of the Constitution

Citing the decision of Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, it was stated that the Righto Earn a livelihood and the Right to Live with Dignity are well-established facets of the Right to Life guaranteed under Article 21 of the Constitution.

Court added that coming to the conclusion that the impugned condition cannot be sustained on account of it being discriminatory and arbitrary, stated 

“we are satisfied that the absolute prohibition as regards persons above the age of 65 years who earn their livelihood from the film industry (which is allowed to operate), is a measure that violates the Petitioner’s right to live with dignity under Article 21 of the Constitution and the restriction imposed by the Impugned Condition in relation to a specific sector or industry that is now allowed to operate, cannot constitute a valid procedure established by law.”

Hence, on perusal of the above observations, the Court held that if there are no general prohibitions on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age-based prohibition in only one industry namely the film industry/television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.

The stated impugned condition was quashed and set aside in view of being an unreasonable restriction. [Pramod Pandey v. State of Maharashtra,  2020 SCC OnLine Bom 846, decided on 07-08-2020]


Also Read:

Bom HC | How a physically fit person of 65 years age or above is expected to live a dignified life if not allowed to go out & earn livelihood? Maharashtra Govt to respond

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 BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of A.B. Chaudhari and Harnaresh Singh Gill, JJ., addressed a petition where petitioner challenged Part 5(1) Clause (b) of a notification issued by the State of Haryana along with the order.

Petitioner contended that the impugned notification provided financial assistance equal to the pay and other allowances last drawn by the employee for 15 years. Petitioner prayed that this restriction was arbitrary, irrational and unconstitutional and thus the order related thereto should be set aside. Argument advanced by the respondent was that the issue raised in this petition was covered by a decision of this Court against the petitioner, thus this petition should be dismissed accordingly.

High Court applauded the clause in the notification for solving the problem of dependents that they should receive the full salary of the deceased employee till his superannuation or till 15 years whichever is less. Court viewed 15 years to be enough for the dependents to find a way to financially stabilize themselves. Thus, it was found that nothing was wrong with the impugned clause of notification. The case of Krishna Kumari v. State of Haryana, CWP No. 4303 of 2009 was referred to where it was observed that Compassionate Assistance to dependents is to deal with the emergent situation of the family of deceased and if the dependents approach court after a long delay then the purpose of assistance would be lost. It was thus opined by the court that the policy to provide salary for 15 years, should be upheld and was not violating Article 14 of the Constitution. Therefore, this petition was dismissed. [Shilpa v. State of Haryana, 2019 SCC OnLine P&H 152, dated 15-02-2019]

Case BriefsSupreme Court

The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites a wrath of the Constitution.

                                                  – Dipak Misra, CJI and A.M. Khanwilkar ,J.

Supreme Court: The 5-Judge Constitution Bench has held section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. CJ Dipak Misra delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions.

Before the Supreme court, in the writ petition, was the constitutional validity of Section 497 IPC which criminalizes adultery and Section 198 (2) CrPC which provides for offences against marriages. Petitioner submitted that the provision by its very nature is arbitrary and invited the frown of Article 14 of the constitution.

CJ Dipak Misra (for himself and A.M. Khanwilkar) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person. In regard to dignity to women and gender equality, it was observed that Section 497 curtails equality to and dignity of women by creating invidious distinctions based on gender stereotypes which creates a dent in the individuality of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women. Therefore we have no hesitation in holding that the same offends Article 21 of the constitution.

In the words of the Court, “treating adultery an offense, we are disposed to think, would tantamount o the State entering into real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently the provision is reflective of a tripartite labyrinth. A situation maybe conceived of where equality of status and the right to file a case maybe conferred on the wife. In either situation, the whole scenario is extremely private.”

R.F. Nariman, J. In his concurring opinion referred to various religious testaments and texts as also law and judgments of various foreign jurisdictions. He observed that the ostensible object of Section 497, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 IPC. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

Dr D.Y. Chandrachud, J. also referred to foreign judgments and distinguished authors. Section 497 IPC is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. manifest arbitrariness is writ large on the provision.

Indu Malhotra, J., the only woman on the Bench traced the origin of the word adultery from the French language; and discussed the doctrine of coverture, historical background of Section 497 and contemporary international jurisprudence. She observed that the Section is replete with anomalies and incongruities which renders it liable to be struck down as arbitrary and discriminatory.

Resultantly, Section 497 IPC and Section 198(2) CrPC were struck down. And the decisions in Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 and V. Revathi v. Union of India, (1988) 2 SCC 72 were overruled. Justice Malhotra, in her opinion, delivered, also held W. Kalyani v. State, (2012) 1 SCC 358 as overruled. The petition was accordingly disposed of. [Joseph Shine v. Union of India,(2019) 3 SCC 39, decided on 27-09-2018]

Hot Off The PressNews

Supreme Court: The Court, today, is likely to pronounce its judgment on a plea that seeks to ban lawmakers from practising as advocates. A Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. will deliver the verdict.

On July 9, the CJI-led three-Judge bench reserved its order on a plea seeking a ban on legislators practising as advocates. The Public Interest Litigation was filed by Ashwini Kumar Upadhyay, an office-bearer of the Bhartiya Janta Party. He argued that the Bar Council of India debars salaried employees from practising as advocates, and as lawmakers draw a salary from the public exchequer, the bar is applicable to them. The petitioner contended that while a public servant cannot practice as an advocate, legislators are practising in various courts which was a violation of Article 14 of the Constitution, among others.

The petitioner, in his plea, claimed that the parliamentarians and legislators, practising as lawyers, posed a conflict of interest and violated the provisions of the Advocates Act and the Bar Council of India Rules. Furthermore, such legislators take a fee from litigants and salary from the public exchequer, which is professional misconduct.

Attorney General K.K. Venugopal, however, sought dismissal of the PIL. During the hearing, the Court was of the view that the Government was not a master, and thus the principle element, i.e. master-servant relationship, which employment postulates is missing in the case of a legislator.

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ and M.S. Sonak, J. dismissed a petition challenging the rejection of petitioner’s application for grant of furlough.

The petitioner was convicted for the offences punishable under Sections 302, 341 and 397 IPC. He preferred an application for furlough, which was rejected. The petitioner preferred an appeal thereagainst, which too was dismissed. Aggrieved thus, the petitioner filed the instant criminal writ petition. The application of the petitioner to be released on furlough came to be rejected in view of Rule 4(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959. The said rule provides that the prisoners convicted under Sections 392 to 402 IPC (both inclusive) shall not be eligible for grant of furlough.

The High Court, referring to earlier decisions, observed that Rule 4(2) is valid and intra vires and not vulnerable to challenge to the charge of being violative of Article 14 of the Constitution. In offences falling under the said sections, it would be hazardous to release convicts on furlough because when one abandons honest labour for the career of theft or intimidation coupled with violence, it tends to become a way of life and the temptation is too great to resist when the prisoner is at large. The offences of dacoity and robbery fall within a class by themselves. Thus, the classification is based on the danger inherent in releasing such prisoners and has a nexus with the object sought to be achieved. In view of the same, the High Court was not inclined to interfere in the matter. The petition was, accordingly, dismissed. [Sunil Gaurishankar Kharwar v. State of Maharashtra, 2018 SCC OnLine Bom 2450, dated 07-08-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: The Single Judge Bench comprising of M.K. Hanjura, J., decided in a writ petition that the decision of an Empowered committee on matters like, provision of security, shelter and accommodation to a person cannot be challenged in Court of law.

The petitioner contends that he has been victimized by different militant organizations due to him being a political worker of the Indian National Congress and for the same reason he lost his son as well. Petitioner had approached the competent authority for the provision of accommodation for which he was provided appropriate accommodation along with a relief of Rs. 4,000 every month by the Relief Commissioner. Further it has been stated by him that he was forcibly taken by the militant and after his release when he returned back to the place he was staying all his belongings were thrown out and his accommodation was allotted to some other person leaving him with no shelter and the relief which was being provided to him also stopped.

Petitioner had filed various representations for the above-stated reasons but nothing going in his favour he had to approach the High Court in regard to these issues.

The Hon’ble High Court, on noting the stated facts and circumstances of the petitioner’s grievance, sought the records of the case and it was found that the Empowered committee had concluded that the relief to the petitioner does not fall within the ambit of the policy and recommendation of the State Human Rights Commission (SHRC).

Therefore, the High Court while dismissing the petition stated that, when the question of correctness of the reasons for a decision taken by the Government comes under the radar, then it is not a matter of concern in the judicial review and Court is not the appropriate forum, unless the policy decision is offending the basic requirement of Article 14 of the Constitution of India. [Ghulam Ahmad Lone v. State of J&K; 2018 SCC OnLine J&K 288; decided on 09-05-2018]

 

Hot Off The PressNews

On Day 4 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, heard submissions of Senior Advocate Shyam Divan who continued with discussing the various provisions of the Aadhaar Act, 2016. On Day 3 of the hearing, Shyam Divan had discussed the scope and applicability of the 9-judge bench Privacy verdict on the Aadhaar issue and was taking the Court through various provisions of the Aadhaar Act, 2016 when the Bench rose for the day. Below are the highlights from Day 4 of the hearing:

Discussion on Section 59 of the Aadhaar Act, 2016:

  • Shyam DivanSection 59 of the Aadhaar Act, which validates all acts of the UIDAI prior to the Act, applies only to central government actions, as per its text. This section does not control acts of private entities, like enrolment agencies. Their actions are not protected.
  • Sikri, J: Central Government appointed UIDAI in the pre-Act era, and all the acts flow from that.
  • Shyam Divan: The notification establishing the UIDAI might protect the actions of the Central Government in entering into the MoU, but doesn’t cover the actions of the registrars.
  • Chandrachud, J: Actions of the registrars are traced back to the MoU.
  • Shyam Divan: Enrollment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government. Therefore, the enrollment prior to the Act are not validated by Section 59. In any case, you cannot have a retrospective validation of a fundamental right violation.
  • Chandrachud, J: Privacy judgment says that there must be a basis in law. Section 59 attempts to provide that by bringing about a legal fiction. It will have to be considered how you deal with data breaches prior to the Act.
  • Shyam Divan: Informed consent is crucial, and you can’t have a retrospective validation saying that there was always consent, prior to the Act. Even if this provision is to be upheld, it should be given the narrowest reasonable construction.

Heads of challenge to the Aadhaar Act as specified and explained by Shyam Divan :

  • Surveillance: 
    • The State is empowered to collect records over the course of an individual’s lifetime. On the basis of aggregation, over time, the State acquires a profile of an individual, a community, a segment of society. The Constitution does not permit a surveillance State.
    • Every electronic device linked to the internet has a unique number. In addition when the device is linked to CIDR, the devices exchange information.The device is assigned a number qua Aadhaar. A specific ID at the first interaction. Thereafter, the transmission will be recognised as emanating from that device.
    • A unique electronic path attaches to each transmission. This identifies the links through which the transmission is done. Each link is identifiable. It is technically possible to track every transaction. It is possible to track the location of every device in real time.
    • Discussion between Chandrachud, J and Shyam Divan:
      • Chandrachud, J: To what extent the Court can go into questions of technical evidence? There is also a distinction between the existence of a mechanism and its abuse. If the distinction between fingerprints on your iPhone and Aadhaar is only if degree. Should the Court second-guess the decision of the executive government, especially when no system in the world is secure?
      • Shyam Divan: These affidavits confirm that there is a complete mapping of the electronic path, which happens in real time, and that you can track the location.
      • Chandrachud, J: Aren’t we accepting Google Maps tracking us, and other private corporations?
      • Shyam Divan: When you are tracked by the State in real time, it is tantamount to a police State. The Constitution does not allow this. Google is not the Indian State, and the issue is one of consent.  Google, powerful though it is, is not as powerful as the State.
      • Chandrachud, J: I should have no objections to the State knowing whether I’m paying my taxes. So there should be a distinction between collecting data and using it. If the use of data is limited to its purpose, then what is the problem with collection. We live in times of terrorism and money laundering and welfare expenditure, and this has to be balanced. Surveillance is about how data is used, not collected.
      • Senior Advocate Kapil Sibal: The problem is of giving the State that kind of information. ‘Big brother’ will have the information. He may use it and you won’t know it. By the time you do, he will become a bigger brother.
      • Shyam Divan: The point of this whole case is to prevent that situation where ‘Big Brother’ is watching.
  • Violation of Privacy: Between 2010 and 2016, there was no law authorising the violation of privacy. Even after the Aadhaar Act, the violation continues. The citizen is compelled to report her activities to the State through the electronic footprint. Even for availing of subsidies, an alternative means of identification should be allowed. In a digital society, an individual has the right to protect herself by maintaining control over personal information
  • Limited Government: Constitution is not about the power of the State but about limits to that power. Aadhaar allows the State to dominate the individual through an architecture that enables profiling, and by the power to cause civil death by deactivating Aadhaar. Instead of the State being transparent to the individual, the individual is made transparent to the State.
  • Aadhaar Act being passed as a Money Bill
  • Violation of Articles 14 and 21 of the Constitution:
    • There is no informed consent. There is no opt-out option. UIDAI has no direct relationship with the collecting agencies. The data collected and stored lacks integrity.
    • Biometrics are untested, and probabilistic. The use of biometrics has led to exclusion from welfare schemes. If biometrics don’t work, then a flesh and blood individual ceases to exist. If your biometrics don’t match, you become a ghost. A citizen in a democratic society has the right and choice to identify herself in a reasonable manner. Mandating a single highly intrusive form of identity is inconsistent with democracy.
    • Authentication records include the time of authentication and the requesting entity. This can be stored for 2 + 5 years. This enables real-time surveillance.
    • Information about the specific details of the CIDR is not in the public domain because of natural security concerns. (Answering Chandrachud, J’s question as to who maintains the CIDR)
    • Private enrollment agencies cannot be entrusted with the crucial task of ensuring informed consent.
    • Definition of “resident” is arbitrary and has no verification magazine.
    • The individual has a right to remain free of monitoring as long as they have not violated any criminal law.
    • On cancellation of Aadhaar, the services will be disabled personally. You can just switch off a person.

The bench will now continue the hearing on 30.01.2018.

Also read the highlights from Day 1, Day 2 and Day 3 of the hearing.

Source: twitter.com/gautambhatia88

Case BriefsSupreme Court

Supreme Court: In the issue relating to ban of female devotees between the age group of 10 to 50 from entering the Sabrimala Temple of Lord Ayyappa in Kerala, the 3-judge bench of Dipak Misra, CJ and R. Banumathi and Ashok Bhushan, JJ referred the matter to a Constitution bench.

Advocate RP Gupta, appearing for the petitioners argued that there was no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. He said:

“banning entry of women would be against the basic tenets of Hindu religion.”

Senior Counsel K Ramamoorthy, the amicus curiae in the matter, submitted before the that the question as to what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India, cannot be decided by this bench and, therefore, the matter should be referred to a Constitution Bench.

Senior counsel Raju Ramachandran, also the amicus curiae in the matter, said:

“The right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution.”

Refuting the contention of the State of Kerala and the Devaswom Board that the practice is based on religious custom and the same is essential to religious practice and that there is not a total prohibition, he said that such a religious practice cannot be essential to the religion and it has been only imposed by subordinate legislation. He added:

“a significant section of adult women is excluded and the singular ground for exclusion is sex and the biological feature of menstruation. To put it differently, the discrimination is not singularly on the ground of sex but also sex and the biological factor which is a characteristic of the particular sex.”

The State and the Devaswom Board had contended that the petition under Article 32 of the Constitution was not maintainable as no right affecting public at large was involved in the case. It was further said:

“Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion.”

It was argued that the Kerala High Court decision, where it was held restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, would operate as res judicata.

The following questions have been framed for Constitution bench’s consideration:

  • Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  • Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  • Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution? [Indian Young Lawyers Association v. State of Kerala, 2017 SCC OnLine SC 1236, decided on 13.10.2017]
Case BriefsHigh Courts

Delhi High Court: Mr. R.P. Luthra,  a practising advocate had filed a writ petition before the Delhi High Court challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional. The writ petition was dismissed by the Single bench stating that a High Court cannot declare Supreme Court’s judgment as per incuriam and that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Now, the petitioner had appealed against the order before Division Bench contending that the same had been passed without affording adequate opportunity to the petitioner to argue the matter. He also referred to the fact that the name of a practicing Advocate had been recommended by the Collegium by the impugned recommendation without considering the candidature of appellant and other similarly placed lawyers and therefore, contended that it was violative of Articles 14, 19 and 21 of the Constitution. He further submitted that the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 referring to Centre for PIL v. Union of India, (2011) 4 SCC 1. The Division Bench rejected the contention stating that there is a basic difference between ‘eligibility’ and ‘suitability’ citing Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, in which it was held that the appointment of a Judge of the High Court/Supreme Court requires ‘consultation’ and fitness of a person to be appointed is evaluated in the consultation process. Therefore, the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation, the Bench held.

The advocate also contended that the Collegium should not have made the recommendation without finalising the Memorandum of Procedure for improvement of the Collegium System of appointment of Judges suggested by the Constitution Bench vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. To this, the Court reverted that in the light of the order of the Constitution Bench in 2015 SCC OnLine SC 1224 dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.  The appeal was dismissed accordingly. [RP Luthra v. Union of India, 2017 SCC OnLine Del 7239, decided on 01.03.2017]

 

Case BriefsHigh Courts

Calcutta High Court: Citing the concept of ‘co-extensive’ rights as laid down in Delhi Cloth and General Mills Co. Limited v. Union of India (1986) 2 SCC 288, the bench comprising of I.P. Mukerji J., allowed the writ petition by the Indian Oil Officers’ Association impugning various clauses in a Memorandum of Understanding  between them and the Indian Oil Corporation (Respondents) on grounds of unconstitutionality, arbitrariness, illegality and mala fide intent, through violation of rights to freedom of demonstration, association, etc. under Article 19 of the Petitioner-Association.

The said agreement, governing the IOAA, a Trade Union registered under section 13 of the Trade Unions Act, 1926, was allegedly signed on 24th April 2009 by office-bearers of the IOAA who were then suspended or dismissed employees of the Corporation, and rejected by the All India Central Executive Committee of the IOAA on 29th July 2011. The impugned clauses 4, 11, 13, 16 and 18, sought to:

  1. Bar the Association from membership of any other federation or collective forum (clause 4)
  2. Prevent officers of Grade G and above from membership in the Association. (clause 11)
  3. Bar interference of Association in any manner in rights of Management in employment, non-employment, terms of employment and service conditions (clause 13)
  4. Prevent Officers in the position of Head of Department and Location Head, irrespective of grade, from participation in agitation of any kind. (clause 16)
  5. Stipulate that any violation of the code, reported or observed, would occasion loss of recognition of Association (clause 18)

The Court stated that it could not adjudicate upon questions of fact under its writ jurisdiction, nor upon the private law matter of authority to form contract. Assuming existence of agreement, the Court, while recognising that a company or body corporate could not enforce rights under Article 19 as held in The Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, (1997) 7 SCC 155, and also stated that there may be causes of action common to a body corporate as well as the shareholders or members, or ‘co-extensive’ rights; in which a writ may be maintained by a body corporate or  registered trade union or its members. Further, section 15 (d) of the Trade Unions Act provides for the expenditure of funds by a trade union for conduct of trade disputes on behalf of its members, in effect an espousal of members’ causes. The Court declared its jurisdiction over the public law element, whether it arose from contract or not, and adjudged the impugned clauses as void ab initio and illegal. The Court ordered the supersession of the agreement within 6 months, or else its termination by operation of this order. The Court stated that the writ, filed 6 years after the events, could not be barred by delay, as something non-existent did not trigger a cause of action capable of limitation. Indian Oil Officers’ Association. v. Indian Oil Corporation Ltd, 2016 SCC OnLine Cal 2301 , decided on June 15, 2016.