Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, Bail Appl. No. 3475 of 2022, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

The facts of the case are such that the writ petitioners were appointed to the post of Agriculture Teachers. At the time of appointment, the petitioners were pursuing PhD courses and as a result of obtaining an appointment, they could not pursue the Ph.D. course. A joint application was filed by the petitioners to allow them to pursue Ph.D. course and to grant leave without pay, but no response was given by the authorities. Thus, the petitioners approached and filed writ petition which was disposed of providing that the representation of the petitioners would be considered within a period of 15 days. Assailing this, instant appeal was preferred.

The Single Judge observed, “It is relevant at this juncture to take note of the fact that as regards grant of leave is concerned, the same has been dealt with under the Chhattisgarh Civil Services (Leave) Rules, 2010.”

Counsel for appellants Mr. Kesharwani submitted that there are number of instances when the Government granted study leave even though the conditions enumerated under Rule 42(5) of the Rules of 2010 had not been fulfilled and therefore, the present petitioners are treated discriminatorily.

The Court relied on judgment Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81, and observed that Article 14 of the Constitution does not envisage negative equality but has only a positive aspect and thus, if some other similarly situated persons had been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well.

The Court further observed that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner.

The Court thus held “we find no good ground to interfere with the order of the learned Single Judge and, accordingly, the writ appeal is dismissed.”

[Lokesh Ahirwar v. State of Chhattisgarh, 2022 SCC OnLine Chh 757, decided on 27-04-2022]


Appearances

For Appellants: Mr. Rajesh Kumar Kesharwani, Advocate.

For Respondents No. 1 to 5: Ms. Astha Shukla, Government Advocate.

For Respondent No. 6: Mr. Shashank Thakur, Advocate


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Sameer Jain, J., directed the petitioners to file amended cause title at all respective places.

 The instant facts of the case are such that this Court observed that respondent 1 was titled Raja Laxman Singh on perusal of the cause title of the petition.

The Court relied on judgment Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191 wherein it was observed that in view of 26th constitutional amendment, the State of Rajasthan do endorse the view that use of prefixes and suffixes, other than military or academic distinction in terms of Article 18 of the Constitution of India, are abolished and are violative of Article 14 of the Constitution of India.

In Balaji Raghavan v. Union of India, (1996) 1 SCC 361 it was observed:

  1. Hereditary titles of nobility conflict with the principle of equality insofar as they create a separate, identifiable class of people who are distinct from the rest of society and have access to special privileges. Titles that are not hereditary but carry suffixes or prefixes have the same effect, though, the degree may be lesser. While other Constitutions also prohibit the conferment of titles of nobility, ours may perhaps be unique in requiring that awards conferred by the State are not to be used as suffixes or prefixes. This difference is borne out of the peculiar problems that these titles had created in pre-independent India and the earnest desire of the framers to prevent the repetition of these circumstances in Free, Independent India.”

The Court observed that on perusal of Article 14, 18 and 363A of the Constitution of India as well as the judgments rendered by the Supreme Court in Raghunathrao Ganpatrao (supra) and Balaji Raghavan (supra), this Court is of the view that any title awarded to the citizen of India by a Foreign State cannot be accepted nor used and no such title, other than the military or academic distinctions, can be conferred other than by the State. In terms of Article 363A of the Constitution of India, the heredity titles of nobility being in conflict with the principles of equality and contrary to Article 14 of the Constitution of India cannot be used as prefixes or suffixes.

The Court held “in Constitutional Courts, all other Courts, Tribunals, public offices of the State etc., the use of salutation and titles is prohibited in terms of Articles 14 18 and 363A of the Constitution of India. The said restriction will also apply in the public domain as well as public documents & public offices.”[Bhagwati Singh v. Raja Laxman Singh, S.B. Civil Writ Petition No. 20051/2019, decided on 03-02-2022]


 For Petitioner(s) : Ms. Suruchi Kasliwal, Adv.

For Respondent(s) : Mr. Vagish Kr. Singh, Adv. for Mr. Aashish Kr. Singh, Adv.  Mr. MS Singhvi,


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., dismissed an appeal challenging the decision of State of Rajasthan to place persons having experience in Rajasthan and those having experience in other States on different footings for extending benefits of State notification proving bonus marks. Approving the findings of Rajasthan High Court, the Bench held,

“…the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.”

Factual Backdrop

The State of Rajasthan had framed rules known as Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Services (Amendment) Rules, 2013. Subsequently, the a State notification was issued on 30-05-2018 providing that the candidate who had worked under the Government, Chief Minister BPL Life Saving Fund, NRHM Medicare Relief Society, AIDS Control Society, National TB Control Program, Jhalawar Hospital and Medical College Society, Samekit Rog Nirgrani Pariyojna or State Institute of Health Family Welfare (SIHFW), would be entitled to bonus marks as per the experience attained. The notification provided,

“For 1 year of experience, the bonus marks will be 10, for 2 years of experience the bonus marks will be 20 and for 3 years of experience it will be 30. The advertisement also provided that only such of the candidates who were having experience certificate from the competent authority as mentioned in the said advertisement would be entitled to the bonus marks.”

On being aggrieved by the decision of the State to limit the benefit of the notification to those who had experience under NRHM in Rajasthan only and exclude those who had experience of working under the NRHM scheme on contract basis in different States, the appellants had approached the High Court vide various writ petitions seeking a direction to the State to accept the experience certificate of the petitioners which was issued by the NRHM authorities of different States, so as to qualify them for getting the bonus marks.

Findings of the High Court

The Single Judge of the High Court allowed the said writ petitions and directed the State of Rajasthan to grant bonus marks to the appellants. However, by the impugned judgment the Division Bench set aside the order of the Single Judge holding that the intention of the State of Rajasthan was to confine the benefit of award of bonus marks to those employed in the schemes within the State of Rajasthan and not in other States.

Was there any intelligible differentia?

Rule 19 of the Rules, 2013 provided that the Appointing Authority shall scrutinize the applications received by it and require as many candidates qualified for appointment under these rule as seem to it desirable for interview. The appellants argued that a plain reading of Rule 19 of the said Rules would clearly show that the experience of working anywhere in the country under the NHM/NRHM schemes would be sufficient to qualify a candidate to get bonus marks as both category of candidates either belonging to State of outside were doing same kind of work.

Therefore, the appellants alleged that to discriminate between employees working under the NHM/NRHM schemes in the State of Rajasthan as against those working outside the State of Rajasthan, was without intelligible differentia, not having the nexus with the object sought to be achieved and as such, was palpably arbitrary and violative of Article 14 of the Constitution.

Analysis and Observations

Noticing that the policy of the State of Rajasthan was that while selecting Nurse Compounder Junior Grade, the bonus marks were to be given to such employees who had done similar work under the State Government and under the various schemes, the Bench stated that when Rule 19 is read with sub clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear.

Sub clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list revealed that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. Hence, the Bench opined that reading ‘Project Director, NHM/AIDS’ to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. The Bench expressed,

“When sub clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term ‘Project Director, NHM’ will have to be construed as ‘Project Director, NHM’ within the State of Rajasthan.”

The Bench noted that in Jagdish Prasad v. State of Rajasthan, (D.B. Civil Writ Petition No. 12942/2015, dated 09-02-2016) the Division Bench of the Rajasthan High Court had held that the Government of Rajasthan had conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertained to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones and such a training is mandatory and non-joining of the same would result in non-renewal of service contracts. It had been held by the High Court that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State.

Approving the findings of the he Division Bench in the aforementioned case, the Bench stated that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.

Verdict

In the light of the above, the Bench concluded that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan could not be said to be arbitrary. The impugned order was upheld.

[Satya Dev Bhagaur v. State of Rajasthan, 2022 SCC OnLine SC 206, decided on 17-02-2022]


*Judgment by: Justice B.R. Gavai


Appearance by:

For the Appellants: Rishabh Sancheti, Himanshu Jain and Alpana Sharma, Advocates

For the State: Manish Singhvi, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., held that it is by virtue of the statute mandating reservation for disabled persons that persons with disability are treated as a homogenous class irrespective of social classification and such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15 to claim on same reservation for SC/ST candidates.

Factual Matrix

The petitioner, a participant of NEET Examination, 2021 belonged to Scheduled Caste community. The grievance of the petitioner was that as per the Prospectus and various Government Orders, 10% of the Government seats in Government Medical Colleges were reserved for SC/ST candidates; however, the reservation provided by the State was discriminatory in nature. The petitioner alleged that while providing reservation to persons with disabilities, the respondent adopted a criterion to reserve 5% of the seats available after leaving the seats set apart under Clauses 4.1.1 and 4.1.2. However, while granting reservation to Scheduled Castes and Scheduled Tribes, the respondent adopted a different criteria under Clause 4.1.5 by reserving seats leaving the seats set apart under Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4 resulting in marginal reduction of number of seats reserved for Scheduled Castes and Scheduled Tribes.

Therefore, the petitioner challenged the Clause 4.1.5 of the Prospectus on the ground that the two classes entitled for reservation were discriminated among them and such adoption of criteria lead to the marginal decrease in the available seats for the SC/ST candidates. The petitioners argued that the condition prescribed in Clause 4.1.5 of was highly arbitrary, unreasonable and violative of the principle of equality enshrined in Article 14 of the Constitution and hence liable to be interdicted.

On the contrary, the State argued that it is for the State to decide as to how the principle of reservation is to be applied and the petitioners cannot maintain a prayer seeking a direction to adopt different criteria from that adopted by the State as the State has sufficient authority to decide how the principle of vertical reservation should be applied.

Analysis and Observations

Persons having disability form a homogenous class by themselves where disability is not on the basis of social backwardness but on the basis of physical disability. Noticing that the claim of the petitioners for reservation was traceable to Article 15 which is an enabling right, while the claim of the PWD persons traces to a statute promulgated for the purpose of implementation of a Constitutional mandate, the Bench held that such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15.

Therefore, the Bench concluded there was no violation of Article 14, as it postulates equal treatment for equally placed persons that is to say unequals can be treated unequally. The Bench observed,

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Further, the Bench emphasised that reservation itself is not a matter of right and the Constitutional provision is only enabling in nature. The State can provide for separate and exclusive channels of entry or sources of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations.

Accordingly, it was held that such two channels of entry or two sources of admission were valid provisions, when the classification was based on an intelligible differentia with a laudable object sought to be achieved. The petition was dismissed for being devoid of merit. [Sumith V Kumar v. State of Kerala, WP(C) No. 21885 of 2021, decided on 11-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: K.Siju, S.Abhilash and Anjana Kannath, Advocates

For the Respondents: P.G.Pramod, Government Pleader and Titus Mani for R7

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G.Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

The petitioner was an aspirant to the post of Assistant Law Officer notified by the National Thermal Power Corpn. Ltd. (NTPC) and was presently pursuing her studies in LLM at the Cochin University of Science and Technology. Though, the petitioner had the notified qualification of 60% marks in Bachelor’s Degree in Law and registration with the Bar Council, she was aggrieved by the discriminatory manner in which the selection process was being confined to candidates who had appeared for CLAT-2021 PG programme.

The petitioner submitted that, being a public sector undertaking falling within the definition of Article 12 of the Constitution, the NTPC could not shut out the chances of persons like the petitioner, merely for the reason that she was pursuing her PG programme in a University that was not part of the consortium of National Law Universities. The petitioner argued that there was no nexus between the objectives sought to be achieved by imposing such a condition, since CLAT exam is meant for assessing academic brilliance of students, whereas the NTPC was seeking to select the best among legal professionals. Reliance was placed by the petitioner on the decision of the Supreme Court in Lt. Col. Nitisha v. Union of India, 2021 SCC online SC 261, to contend that the imposition of such restrictive condition amounts to indirect discrimination.

The question for consideration before the Bench was whether, after having prescribed LLB degree from any recognised Indian University with 60% marks as qualification, the eligibility criteria could be restricted to candidates who had appeared for CLAT-2021 PG Programme and CLAT score made the basis for selection? Also, whether persons having requisite qualifications could be compelled to appear for the CLAT PG Programme as a condition precedent for accepting their applications?

Considering the above, the Bench opined that prima facie the condition was discriminatory. The Bench stated,

“Even if the CLAT exam conducted by the Consortium of National Law Universities is capable of selecting the brightest students; that is no justification for thwarting the career prospects of law graduates like the petitioner.”

Consequently, the Bench directed the Government to accept the application submitted by the petitioner, subject to the final outcome of the petition. On being pointed out that applications are to be submitted online and the system may not accept the applications which are not in conformity with the notification, the Bench further directed that the petitioner shall be permitted to submit her application by logging on to the website of NTPC and if the application is not accepted by the system, that can be brought to the notice of the Court. The matter was posted on 20-02-2022 for further hearing. [Aishwarya Mohan v. Union of India, 2022 SCC OnLine Ker 78, order dated 05-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Maitreyi Sachidananda Hegde, Advocate

For the Union of India: S.Manu, ASG and N.S.Daya Sindhu Shree Hari, Central Government Counsel

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ while upholding the constitutionality of the Scheme formulated by the State of Tamil Nadu granting loan waiver to small and marginal farmers as these farmers suffer a greater degree of harm because of their limited capacity and aid, had the occasion to discuss in detail the under-inclusive and over-inclusive classification and explained that a statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem and it is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address.

Under-inclusive and over-inclusive classification vis-à-vis the two-pronged test to determine if there has been a violation of Article 14

The determination of whether the classification is under-inclusive is closely related to the test that is undertaken by the Court while determining the relationship of the means to the end. The Court follows the two-pronged test to determine if there has been a violation of Article 14. The test requires the court to determine if there is a rational nexus with the object sought to be achieved.

While non-classification arbitrariness is tested based on the proportionality test, where the means are required to be proportional to the object, classification arbitrariness is tested on the rational nexus test, where it is sufficient if the means share a ‘nexus’ with the object. The degree of proof under the test would impact the judgment of this Court on whether the law is under-inclusive or over-inclusive. A statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem. It is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address. The determination of under-inclusiveness and over-inclusiveness, and degree of deference to it is dependent on the relationship prong (‘rational nexus’ or ‘proportional’) of the test.

The nexus test, unlike the proportionality test, is not tailored to narrow down the means or to find the best means to achieve the object. It is sufficient if the means have a ‘rational nexus’ to the object. Therefore, the courts show a greater degree of deference to cases where the rational nexus test is applied. A greater degree of deference is shown to classification because the legislature can classify based on the degrees of harm to further the principle of substantive equality, and such classification does not require mathematical precision. The Indian Courts do not apply the proportionality standard to classificatory provisions.

Important Rulings

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

The over-emphasis on the ‘objective’ of the law, instead of its ‘effect’ – particularly when the objective is ostensible – was observed not to further the true meaning of the equality clauses under the Indian Constitution. The traditional two- pronged classification test needs to be expanded for the Courts to undertake a substantive review of Article 14 violations, away from the formalistic tendency that the twin test leans towards.

State of Gujarat v. Ambica Mills, (1974) 4 SCC 656

A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as underinclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.

[State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association, 2021 SCC OnLine SC 1114, decided on 23.11.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has upheld the constitutionality of the Scheme formulated by the State of Tamil Nadu granting loan waiver to small and marginal farmers as these farmers suffer a greater degree of harm because of their limited capacity and aid.

Factual Background

A Government Scheme which granted loan waiver to small and marginal farmers was under challenge before the Court for being discriminatory against other farmers. The Madras High Court held the grant of loan waivers only to small and marginal farmers to be arbitrary and directed the appellant to grant the same benefit to all farmers irrespective of the extent of landholding. The High Court in the impugned judgment has observed that the scheme is both under-inclusive and over-inclusive since the total extent of land held by a person is calculated based on the information in the landholding register which permits discrepancies. It also held the scheme to be under-inclusive for not extending the benefit to ‘other farmers’ or the ‘large farmers’.

Reasons for the formulation of this scheme

(i) The small and marginal farmers have faced greater harm due to the erratic climate conditions in view of the limited technology and capital that they possess; and

(ii) The state seeks to provide maximum benefits with the minimum fund.

State’s submissions

  • by waiving Rs. 5780 Crore worth of crop loans, the number of small and marginal farmers who would be benefitted would be 16,94,145. On the other hand, waiving the crop loan of Rs 1980 Crore that the other farmers held would only benefit 3,01,926 of them. Hence, providing the benefit of the scheme only to marginal and small farmers leads to maximum utility for minimum investment.
  • classification was required since the small and marginal farmers suffer a greater degree of harm because of their limited capacity and aid. It is judicially recognized that the legislature is free to recognize degrees of harm and may confine its restrictions or benefits to those cases where the need is the clearest
  • the consumption expenditure of marginal and small farmers exceeds their estimated income by a substantial margin, and the deficits are covered by borrowings. The fact that 16,94,145 small and marginal farmers have availed of agricultural loans as compared to 3,01,926 farmers belonging to the ‘other category’ testifies that the small and marginal farmers have a significant capital deficit when compared to the rest of the farmers. A huge capital deficit, combined with a reduction in the agricultural income due to water scarcity and crop inundation due to floods has led to financial distress. Small and marginal farmers are resource deficient; they do not have borewells to overcome the drought. These farmers are usually dependent on large farms to access land, water, inputs, credit, technology, and markets. It was found that almost 40% of the irrigated land of large farmers was from canals, while less than 25% of the land of small and marginal farmers was irrigated by canals or borewells and they often resort to renting water from larger landholdings.
  • the percentage distribution of the indebted agricultural households depicts that 27% of the households that hold between 0.01- .040 hectares of land; 34% of those who hold between 0.40-1 hectares and 20% of those who hold between 1-2 acres, are indebted. On the other hand, only 4.5% of those who hold 4-10 hectares and 0.6% of those who hold 10 plus hectares are indebted.

Analysis

Introduction of Scheme in pursuance of electoral promise – Effect

The High Court had taken the view that because the scheme was in pursuance of an electoral promise, it is constitutionally suspect. This view was made on an assumption that no study must have been conducted before the electoral promise was made.

The Supreme Court, however, noticed that it is settled law that a scheme cannot be held to be constitutionally suspect merely because it was based on an electoral promise. A scheme can be held suspect only within the contours of the Constitution, irrespective of the intent with which the scheme was introduced.

Why is the application of the impugned scheme to only the small and the marginal farmers justified?

The Court noticed that the purpose of providing a waiver of agricultural loans for farmers is to uplift the distressed farmers, who have been facing the brunt of the erratic weather conditions, low produce, and fall in the prices because of the market conditions. The objective of promoting the welfare of the farmers as a class to secure economic and social justice is well recognized by Article 38.

The percentage distribution of the indebted agricultural households also depicts the poverty that envelops the class of small and marginal farmers.

Hence, the scheme propounded by the State of Tamil Nadu passed muster against the constitutional challenge for the following reasons:

  • A climate crisis such as drought and flood causes large scale damages to small holdings as compared to the large holdings due to the absence of capital and technology; and
  • The small and marginal farmers belong to the economically weaker section of society. Therefore, the loan waiver scheme in effect targets the economically weaker section of the rural population. The scheme is introduced with an endeavor to bring substantive equality in society by using affirmative action to uplift the socially and economically weaker sections. Due to the distinct degree of harm suffered by the small and marginal farmers as compared to other farmers, it is justifiable that the benefit of the scheme is only provided to a specified class as small and marginal farmers constitute a class in themselves. Therefore, the Percentage Distribution of Indebted Agricultural Households < 0.01 0.40 – 1.00 1.01 – 2.00 2.01 – 4.00 4.01 – 10.00 10.00 + classification based on the extent of landholding is not arbitrary since owing to the inherent disadvantaged status of the small and marginal farmers, the impact of climate change or other external forces is unequal.

[State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association, 2021 SCC OnLine SC 1114, decided on 23.11.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Experts CornerSiddharth R Gupta

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

 


Distortion in McDowell and its Resurrection in Shayara Bano


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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

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

 

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

 


Article 14 and the Time Machine: Initial Judicial Responses


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

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

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

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

 

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

(emphasis supplied)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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


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

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

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

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

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

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

[5] (2017) 9 SCC 1.

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

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

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

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

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

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

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

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

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

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

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

[17]  (1970) 1 SCC 248.

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

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

[19] (2017) 9 SCC 1.

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

[21] (1983) 2 SCC 277.

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

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

[23] (1983) 2 SCC 277.

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

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

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

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

[28] (1970) 1 SCC 248.

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

[30] (2001) 2 SCC 386.

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

[32] (2017) 9 SCC 1.

[33] (2017) 9 SCC 1.

[34] (2017) 9 SCC 1.

[35] (2011) 8 SCC 737.

[36] (2011) 9 SCC 286.

[37]  (2011) 8 SCC 737, 767.

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

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

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

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

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

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

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

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

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

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

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

Experts CornerSiddharth R Gupta

“So diverse and adverse are the decisions of different High Courts, and of the same High Court, that in examining cases, as precedents by which to try a suit, the lawyer encounters a perpetual change of cloud and sunshine, and occasionally a real thunderstorm, succeeded by a burning sun. What was law at one time, is not law now – what is law in one place, is not in another – locality, individuality, prejudice, and perpetual change, characterise the decisions of Judges learned in the law.”

Levi Carroll Judson

(American Jurist)

Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.

Henry Ward Beecher

(American Congregationalist Clergyman, Social Reformer and Speaker)

 

The 3-part series of this article attempts to dive deep into “arbitrariness as a testing criteria” for examining the validity and constitutionality of any legislative enactment. In other words, how far “arbitrariness as an independent ground” can be a reason for the constitutional courts to strike down any law having become a havoc for Article 14 of the Constitution of India. A priori, we would have a peep into how the concept of arbitrariness has been expanded to be made applicable to parliamentary/State enacted legislations for nullifying them through the sword  of Article 14. The article which shall be split in 3 parts, shall be compartmentalised into the following sub-sections:

  1. Jurisprudence of Arbitrariness: Origins and Growth up to Royappa.
  2. Unconstitutionality of Legislative Provisions vis-à-vis
  3. Distortion in McDowell and its Resurrection in Shayara Bano.
  4. Article 14 and the Time Machine: Initial Judicial Responses.
  5. Obsolescence as a Ground for Arbitrariness and Unconstitutionality.
  6. Outdated Legislations in the Context of K.S. Puttaswamy.
  7. Scrutiny of Certain Legislations as Being Obsolete and Resultantly Unconstitutional.

 


Jurisprudence of Arbitrariness in India: Origins and Growth up to Royappa


Most of us understand the roots of “concept of arbitrariness” to be originating from the celebrated judgment of E.P. Royappa v. State of T.N.[1] and its intertwining with other pillars of Part III viz. Articles 19, 21 and 32 of the Constitution of India. However very few of us are actually aware that E.P. Royappa[2] had merely enamoured the content of Article 14 with “concept of arbitrariness” in a well-articulated expression, in a way never done before. The Supreme Court in E.P. Royappa[3] in fact did not actually discover “arbitrariness” in Article 14 for the first time, but had elegantly woven the same thing said before, but on different occasions and in different judgments. We will explain how.

 

Article 14 has its reflection in the Preamble to our Constitution, the relevant portion of which reads “Equality of Status and of Opportunity”. It is a hybrid amalgam of two different species of equality viz:

(a) Equality before law – (concept borrowed from the UK Constitution).

(b) Equal protection of law – (concept borrowed from 14th Amendment to the US Constitution).

 

The theory of classification adopted by American Courts was a corollary to the concept underlying equality clause, namely, that a law must operate alike on all persons under like circumstances. In fact, the latter component of Article 14 was the reason for the evolution of the concept of “classification”.

 

The celebrated dissent of Justice Subba Rao in State of U.P. v. Deoman Upadhyaya[4] stated that Article 14 comprises both “positive content” as well as “negative content”. Whereas, equality before the law is a negative content, equal protection of the laws exhibits a positive content of Article 14. In this case, the accused Deoman was convicted for offence of murder by the Sessions Court, Gyanpur. The challenge to the conviction arose on the inherent anomaly in Section 27 of the Evidence Act, 1872 making inadmissible the statements of persons under the presence of a police officer, but not actually in police custody. The statement by Deoman purportedly was made in the presence of the police officer and therefore benefit of Section 27 was being pleaded by the accused. The Constitution Bench affirmed the classification of accused persons separately between those actually in police custody and those with police personnel present around them as reasonable. The Court though accepted that the statements may be confessional in nature, however separate treatment of both the categories of accused was found to be justified. Justice Subba Rao, however in his historic dissent accorded a different dimension and colour to Article 14, vide para 24, he has thus:

 

  1. … This subject has been so frequently and recently before this Court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. … So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.

 

In yet another landmark dissent in Lachhman Dass v. State of Punjab[5], Justice Subba Rao cautioned on imperceptible deprivation of Article 14 of its glorious content and shining aura, whilst emphasising too much on the doctrine of classification. The appellants in this case, were a joint Hindu family firm which has been carrying on business since 1911 in grains, dal, cereals, cotton ginning and pressing, oil manufacture and the like, in the erstwhile State of Patiala. The firm had an account called the cash credit account and used to borrow money in this account by pledging its stocks. In 1951-1952 there was a heavy slump in the prices of the commodities with the result that the amounts advanced by the bank on the security of the goods were very much in excess of the market prices thereof. To cover this shortfall the firm entered into an arrangement with the bank and it is this that formed the source of the litigation in this case. The bank sanctioned a loan on “demand loan account”. The amount payable under the demand loan account not having been paid by the appellants, the bank took steps to realise the same in accordance with the provisions of the Patiala Recovery of State Dues Act, 2002. The vires and constitutionality of this enactment was challenged before the Supreme Court on the ground that the Act and the Rules made thereunder became void on the coming into force of the Constitution as being repugnant to Articles 14 and 19(1)(f) and (g), and the proceedings taken under those provisions being illegal. Vide para 47, the dissenting opinion lent importance to the “positive content” under Article 14. Justice Subba Rao while discussing the scope of Article 14 in the aforementioned para, stated that:

 

  1. 47. … It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

 

Perhaps the first landmark judgment which actually spotted the virtue of non-arbitrariness in Article 14 was S.G. Jaisinghani v. Union of India[6] . The Court, for the first time held “absence of arbitrary power” as sine qua non to rule of law with confined and defined discretion, both of which are essential facets of Article 14. Quoting the celebrated saying of Douglas, J., in United States v.  Wunderlich[7] :

  1. … when it has freed man from the unlimited discretion of some ruler…. Where discretion is absolute, man has always suffered.

 

It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in John Wilkes[8], Burr at p. 2539:

“… means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful….”

 

In Jaisinghani[9], the constitutional validity of seniority rule in regard to Income Tax Officers was challenged along with the improper implementation of the “quota” recruitment as infringing the guarantee of Articles 14 and 16(1) of the Constitution. Justice Subba Rao (this time majority opinion) elaborating on the wide expanse of Article 14 , vide para 14 held thus:

  1. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

 

Another milestone in the development of the concept of arbitrariness in State of Mysore v. S.R. Jayaram[10] wherein the constitutional validity of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers Rules, 1959 was challenged. Under the first part of the said Rule 9(2), the candidates were provided preferential claim to appointment as per their place on the merit list subject to certain reservations for SC/STs and OBCs. The latter part however vested upon the Government the right of making appointment of any candidate to any particular cadre as it deemed suitable at its discretion. This part of the rule was assailed as arbitrary as can be gleaned from the submissions of the counsels appearing from the petitioner therein. The Constitution Bench of the Supreme Court examining the challenge to Rule 9(2) resorted to the principle of “conferment of arbitrary powers”. Arbitrariness was construed in the judgment of S.R. Jayaram[11]  as vesting of uncanalised and unguided discretion of the executive and thus opposed to positive content imbibed in Article 14 r/w Article 16.

 

Thereafter, in the celebrated judgment of Indira Nehru Gandhi v. Raj Narain[12], whilst dealing with the challenge to newly inserted clauses (4) and (5) to Article 329-A , the Constitution Bench of Supreme Court imported the concept of “inherent arbitrariness” in the amending Act to strike down the said clause (4). Whilst declaring clause (4) unconstitutional, the Court held that the amendment to the Constitution created a situation of vacuum with no law to be applied for deciding the dispute of election. The explicit opinion of Justice Chandrachud held that newly inserted clauses (4) and (5) to be arbitrary with the potential to altogether destroy the rule of law. Vide para 681, Justice Chandrachud in his concurring judgment employed the “rationale of arbitrariness”  to declare clauses (4) and (5) to be violative of Article 14. His observations ran thus:

  1. 681. It follows that clauses (4) and (5) of Article 329-A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition of “law” itself.[13]

From the above expositions, one would conveniently comprehend that the foundation stone as also the basic groundwork for embodiment of “concept of arbitrariness” as an essential attribute of Article 14 was laid much before the judgment of E.P. Royappa[14]. It would therefore be  prevaricating to state that concept of non-arbitrariness was expounded for the first time in the judgment of E.P. Royappa[15]. As would be detailed below, the Supreme Court in E.P. Royappa[16] just beautifully joined the dots together to meticulously articulate the negative correlation between arbitrariness and Article 14. E.P. Royappa had challenged the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman, State Planning Commission and thereafter as Officer on  Special Duty as violative of his Articles 14 and 16  rights. The assail rested on mala fide exercise of power by the State with an inferior officer being appointed to the position of Chief Secretary, overlooking the seniority of petitioner Royappa therein.

 

The stage was thus set in the peculiar constitutional facts for the constitutional prodigy Justice P.N. Bhagwati who despised any attempt to “crib, cabin or confine” the unlimited reach of Article 14. Vide para 85, speaking for the majority, Justice Bhagwati held[17]:

  1. 85. … Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

 

Thus in E.P. Royappa[18], the concept of arbitrariness came to be formally embedded as a ground for striking down any legislative or executive action being antithetical to Article 14.

 


Unconstitutionality of Legislative Provisions vis-à-vis Arbitrariness


Post the verdict of E.P. Royappa[19], the Supreme Court found itself armed with a dynamic tool for testing the constitutionality of any legislative or executive action on the touchstone of arbitrariness. The substantive right of “equal protection of law” came to be acknowledged as synonymous to a substantive right and protection against “arbitrariness per se”. Though Seervai in his treatise on Constitutional Law of India[20] has argued that the new doctrine of arbitrariness “hangs in the air” as it is propounded without reference to the terms in which the right to “equal protection of laws” is conferred. Courts have misunderstood the relation between “arbitrariness” and “discrimination”. From the Supreme Court’s reasoning, it appears that “arbitrarness” involves a voluntary action of a person on whom the arbitrary power has been conferred. However, according to Seervai, one cannot attribute will or intention to a legislature. Whatever violates equality is not necessarily arbitrary, though arbitrary actions are ordinarily violative of equality.

 

Equality vis-à-vis arbitrariness was further polished and fleshed out in the celebrated judgment of Maneka Gandhi v. Union of India[21], where the Supreme Court held that the trinity of three articles i.e. Articles 14, 19 and 21 fertilise and cultivate each other mutually. The Court correlated the principle of reasonableness under Article 19 with non-arbitrariness under Article 14 with substantive due procedure under Article 21.

 

The Supreme Court thereafter in A.L. Kalra v. Project and Equipment Corpn. of India Ltd.[22] and D.S. Nakara  v. Union of India[23] accorded new dimension to Article 14 by holding that arbitrariness does not always require a comparative/relative evaluation between two persons for recording a finding of  discriminatory treatment. The Court held in absolute terms that an action per se arbitrary, (even in the absence of any correlation with any other similarly circumstanced person) shall be violative of second part of Article 14. Kalra[24] thus impliedly extended the  applicability of non-arbitrariness to legislative action as well.

 

Thereafter, in Ajay Hasia v. Khalid Mujib Sehravardi[25], the Constitutional Bench of the Supreme Court (five Judges) in no uncertain terms, held the concept of reasonableness and non-arbitrariness to be applicable even to legislative actions. Vide para 16, the Court speaking through Bhagwati, J. held thus:

  1. … Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.

 

Thus, the collateral nurturing of the doctrine of non-arbitrariness and reasonableness throughout for both legislative as well as executive actions, cannot be said to be confined only to the latter. It would therefore, be a constitutional fallacy to state that arbitrariness applies only to executive actions and not to legislative actions. This is evident from the analysis of the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 in K.R. Lakshmanan v. State of T.N.[26] on the touchstones of arbitrariness and unreasonability. The Madras Race Club, a limited liability company registered under the Companies Act, 1956, was formed in the year 1896 by taking over the assets and liabilities of the erstwhile unincorporated club known as Madras Race Club. Race meetings were held in the club’s own race course for which bets were made inside the race course premises. The Tamil Nadu Legislature enacted law by bringing horse racing under the ambit of the definition of “gaming”. The said law was challenged by the club on the grounds that “chance” is a controlling factor in gaming which does not include games of skill like horse racing and thus the said enactment was unconstitutional. The Tamil Nadu Legislature during the pendency of the appeal however, enacted the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (the 1986 Act) which provided for acquisition and transfer of the undertaking of the Madras Race Club on the basis of “public purpose and public good”. The said Act was challenged as violative of Articles 14 and 19(1)(g) of the Constitution of India being irrational and arbitrary. The Court struck down the legislative enactment for being arbitrary and discriminatory. The Supreme Court in Lakshmanan[27] thus established beyond any cavil of doubt that a legislative enactment could be assailed as being arbitrary. This proposition however, stood distorted later owing to an erroneous interpretation of Article 14 subsequently by a lesser Judge Bench (3 Judges) in State of A.P. v. McDowell & Co.[28]

 

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.


† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in constitutional law matters.

†† Final year student, BA LLB (Hons.),  National University of Study and Research in Law  (NUSRL), Ranchi.

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

[2] (1974) 4 SCC 3 : AIR 1974 SC 555.

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

[4] (1961) 1 SCR 14 : AIR 1960 SC 1125.

[5] (1963) 2 SCR 353 : AIR 1963 SC 222.

[6] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[7]1951 SCC OnLine US SC 93 : 96 L Ed 113 : 342 US 98 (1951).

[8]R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327.

[9] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[10] (1968) 1 SCR 349 : AIR 1968 SC 346.

[11] (1968) 1 SCR 349 : AIR 1968 SC 346.

[12] (1975) 2 SCC 159.

[13] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, 258.

[14] (1974) 4 SCC 3 : AIR 1974 SC 555.

[15] (1974) 4 SCC 3 : AIR 1974 SC 555.

[16] (1974) 4 SCC 3 : AIR 1974 SC 555.

[17] E.P. Royappa case, (1974) 4 SCC 3, 38 : AIR 1974 SC 555.

[18] (1974) 4 SCC 3 : AIR 1974 SC 555.

[19] (1974) 4 SCC 3 : AIR 1974 SC 555.

[20] H.M. Seervai, Constitutional Law of India,  438 (paras 9.6 and 9.7 ), 4th Silver Jubilee Edition, 1991.

[21] (1978) 1 SCC 248 : AIR 1978 SC 597.

[22] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[23](1983) 1 SCC 305 : AIR 1983 SC 130.

[24] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[25] (1981) 1 SCC 722, 741 : AIR 1981 SC 487.

[26] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[27] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[28] (1996) 3 SCC 709 : AIR 1996  SC 1627.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Soumitra Saikia, CJ., dismissed a petition which was filed challenging the provisions under Rule 12(3)(iv) of the Assam Secondary Education (Provincialised Schools) Rules, 2018 which provided one of the conditions necessary for being eligible for the post of Principal in Higher Secondary Schools and Senior Secondary Schools in Assam.

“The candidate must have 17 years of teaching experience as Graduate Teacher in any Higher Secondary School.”

The Court found that petitioners did not have the experience of 17 years as Graduate Teachers in Higher Secondary Schools but they have the said experience of 17 years as Graduate Teachers in High Schools. All the same, if their experience as Graduate Teachers in High Schools is also to be included, they would come within the eligibility criteria and, therefore, on various grounds including violation of Article 14 of the Constitution of India, the present writ petition had been filed.

It was however informed to the Court that during the pendency of the petition said Rules have been amended and that even Graduate Teachers having 17 years’ experience in High Schools have been made eligible. Petitioners after this information submitted that petition itself has become infructuous and the same may accordingly be dismissed.

The Court dismissed the petition.[Samarjit Chanda v. State of Assam, 2021 SCC OnLine Gau 1876, decided on 01-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocate for the Petitioner: MR A K DUTTA

Advocate for the Respondent: SC, SEC. EDU.

Case Briefs

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a writ petition which was filed Association of Private

Universities, Madhya Pradesh and Shri J.N. Chouksey, Chairman & Chancellor of one such Private University, challenging constitutional validity of Rule 2(13) read with Entry 3 and 4 of Schedule I of the Madhya Pradesh Medical Admission Rules, 2018 (Admission Rules of 2018) framed under Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (the Act of 2007) as being violative of Articles 14 and 19(1)(g) of the Constitution of India and repugnant to Regulation 9 and other provisions of the Medical Council of India Postgraduate Education Regulations, 2000 (Regulations of 2000).

The members of the petitioner association claim the right to admit the meritorious students from the merit list prepared by National Eligibility-cum-Entrance Test (for short “NEET”).

Counsel for the petitioners argued that there cannot be 100% reservation on the ground of domicile residence in study course of higher levels in medical education, specifically for admission to postgraduate medical courses. He further submitted that giving preference on the basis of domicile leads to loss of excellence as also merit in the case of admissions to medical courses whether it is UG or PG. It was further submitted that the concept of ‘institutional reservation’ applies only in the same university or same college. Counsel for the petitioners argued that impugned clause giving preference to domicile student to the extent of 100% seats, completely eliminates competition with far more meritorious candidates from outside the State, runs foul of Article 14 of the Constitution of India. The ‘reasonable object’ which is sought to be achieved by making such an omnibus provision excluding competition, merit and excellence at the national level, besides being arbitrary, is highly discriminatory. The impugned clause results in complete freezing of seats in favour of candidates who are either domicile of M.P. or who have done their MBBS from the medical colleges of the State. Reservation in excess of 50%, howsoever laudable, is constitutionally impermissible and unacceptable. The impugned clauses 3 and 4 of Entry 3 are thus ultra vires Article 14, 19(1) (g) and 21 of the Constitution of India.

Government Advocate for the respondent-State at the outset raised preliminary objection with regard to maintainability of the writ petition at the instance of the

Association of Private Universities contending that no non-domicile candidate has ever raised any grievance as regards the impugned rule and, therefore, the Union of Private Universities/Private Medical Colleges can have no legitimate grievance with the impugned rule giving preference to the candidates domiciled in the State of Madhya Pradesh, as what they are concerned with is the allocation of the students and the fee which they charge. He further submitted that impugned provision clearly shows that there is no ‘wholesale reservation’ ‘regardless of merit’, much less on the basis of mere domicile of the State. There is no complete bar for admission of those candidates who are domiciled outside the State as they may participate in the first round itself if they have passed their MBBS/BDS examination from a medical/dental college situated in the State of Madhya Pradesh. As regard those who are not domiciled in the State or have not passed MBBS/BDS examination in the State, they are also eligible for admission but only from second round onwards in the event of non-availability of candidates from first two streams. It was submitted that the object of giving preference to the domicile and institutional candidates was to ensure that more of those candidates take admission in the PG/specialized courses in the State whose possibility to serve the people of MP after completing of their PG course is more.

The Court after the submissions, filtered that the primary question therefore would be whether under the impugned provision the State was competent to give priority to the students domiciled in the State of Madhya Pradesh including those who have passed out MBBS examination from anywhere in the State of Madhya Pradesh or would the provision for making such reservation or in other words, for identifying the source of admission was beyond its competence?

The Court relied on the judgment of the Constitutional Bench of the Supreme Court in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine 699 wherein it was authoritatively held that the Union cannot with reference to its power under Entry 66 List I of the 7th Schedule of the Constitution provide for anything with respect to reservation/percentage of reservation and/or even mode of admission in the State quota and that this power is conferred upon the States under Entry 25 List III of 7th Schedule.

After which the relevant question to be assessed was as to what extent such a reservation or source of admission, can be made in respect of the seats in postgraduate medical courses in the private medical colleges?

In view of the peculiarity attached to the impugned Admission Rules of 2018, the question that was required to be answered is as to what extent such preference on the basis of domicile can be given and whether the limit of 50% propounded by the Supreme Court in case of Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 and in the subsequent judgments, for institutional preference, should also apply to preference given on the basis of domicile? This question directly fell for consideration of the Supreme

Court in Dr. Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675 in which the Court noted the similar reservation/preference has been given in favour of domiciles by as many as 13 states, details of which have been enumerated in Para 11 of the report.

The Court stated that the contention of the Government advocate that the decision in Dr.Tanvi Behl does not apply for admission to the PG Medical study courses in private medical colleges as it only deals with the State quota seats in government medical colleges cannot be countenanced for the simple reason that neither the MCI Postgraduate Regulations, 2000 nor the Admission Rules of 2018 make any distinction between the seats of the State quota in government medical colleges and the seats in the private medical colleges.

Unlike the government medical colleges, private medical colleges are not required to part with 50% of the seats in favour of all India quota, but that by itself does not give any authority to private medical colleges to fill up those seats on their own. All the seats even in private medical colleges are required to be filled up as per the common counseling with reference to Clause 9A(3) of the MCI Regulations, 2000 in the same manner in which 50% seats of the State quota in the government colleges are filled, on the basis of common counseling under the overall superintendence, direction and control of the State Government.

The Court didn’t deem it appropriate to interfere with the impugned provision as question of law involved in the present matter has been already referred to the Larger Bench of the Supreme Court and further stated that decision of the question whether in view of Section 8 of the Act of 2007, the State Government is empowered to only provide reservation in favour of SC/ST/OBC and further whether the State can identify the source of admission from amongst candidates domiciled in the State of Madhya Pradesh, as a separate class, has to await the answer of reference by the Larger Bench in Dr.Tanvi Behl case and the decision of which shall be binding on the parties.[Association of Private Universities v. State of M.P., Writ Petition No.6509 of 2019, decided on 21-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioners: Shri Siddharth R. Gupta

Government Advocate for respondent 1& 2: Shri Bramhadatt Singh

For respondent 3: Shri Anoop Nair

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]


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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]