Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J., allowing the present petition, discussed the power of judicial review in cases pertaining with the tenth schedule of the Constitution.
The brief facts of the case are that the writ petitioner in WP (C) No. 3687 of 2020, at the relevant time, was the Kendriya Adhyaksh (President) of Jharkhand Vikas Morcha (Prajatantrik), are recognized and registered State Level Political Party by the Election Commission of India. A meeting of the Central Working Committee of JVM(P) was held on 11-02-2020 wherein it was resolved to merge the JVM(P) political party with Bhartiya Janta Party, a national political party. Further, in a meeting of the Legislature Party of the JVM(P) held on 11-02-2020, it was unanimously resolved to merge JVM(P) with BJP.
In view of the aforesaid decisions, the President of JVM(P), the writ petitioner in WP (C) No. 3687 of 2020, had written a letter on 11-02-2020 to the Election Commission of India by enclosing the decision taken in the meetings dated 11-02-2020 by making a request to take steps as JVM(P) and its legislature party stand merged with BJP henceforth. The Election Commission of India vide letter dated 06-03-2020 has informed regarding merger of JVM(P) with BJP. The fact about the merger has been brought to the notice of the Speaker, Jharkhand Legislative Assembly. The Speaker issued a notice on 18-08-2020 stating that he has come to believe that there is an issue affecting the Tenth Schedule of the Constitution of India and as such, the writ petitioner was directed to produce evidences himself or through Advocate on 17-09-2020. The writ petitioner filed response raising the question of jurisdiction to the effect that the Speaker of the Jharkhand Legislative Assembly has no power to take suo moto cognizance to treat a case under Tenth Schedule of the Constitution of India as the constitutional mandate as under Tenth Schedule under Paragraph 6 thereof, the Speaker has only been conferred with the power to take decision on questions as to the disqualification on ground of defection if any question to that effect is referred. Though, in the case in hand, no such issue has been referred by anyone for its adjudication, however, such power has been exercised by the Speaker in pursuance to the provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 which confers power to the Speaker to take suo moto decision for determining the question of defection in view of the Tenth Schedule of the Constitution of India. Another argument later raised was with respect to the power of the Court to grant interim relief to the petitioners in the instant case, as the same seems protected by Article 212 of the Constitution.
Whether Speaker can take suo moto cognizance under paragraph 6 of the Tenth Schedule?
Whether the Court can exercise its power under Article 226 to grant interim relief in a matter connected with paragraph 6, Tenth Schedule?
On principles governing interim injunction/interim relief
Court referred to the case of, Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd., (1998) 1 SCC 720, wherein the Supreme Court has delineated the other considerations which ought to weigh with the Court hearing application or petition for the grant of injunction as; (i)Extent of damages being an adequate remedy (ii) Protect the plaintiff’s interest forviolation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
Further, reliance was placed on Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, wherein the Court explained the scope of interim order, in the words, “The phrases prima facie case,balance of convenience and irreparable loss are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves.”
On power of Speaker under Paragraph 6 to Tenth Schedule of the Constitution
Court reproduced the said paragraph;
Para 6 Decision on questions as to disqualification on ground of defection —
(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.
The bench concluded in the words, “It is, thus, evident that the Speaker is required to exercise the power for taking decision if question about disqualification is referred for such decision before him, meaning thereby, under the constitutional mandate no power has been conferred upon the Speaker to take suo moto decision for answering the question about disqualification under the Tenth Schedule of the Constitution of India.”
On power of Judicial Review in cases attracting Paragraph 6 of the Tenth Schedule
The bench considered the case of Kihoto Hollohan v. Zachillhu,1992 Supp (2) SCC 651, as observed under Paragraph 110 and 111, in the words, “…The Speakers/Chairman while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.”
Therefore, it is evident that the power of judicial review can be exercised but under its limited scope, that is, if the order has been found to be passed on the violation of the constitutional mandates, mala fide, non-compliance with Rules of Natural Justice and perversity.
Reiterating the precedents cited, the Court said, “…that the petitioner has been able to make out prima facie case and if the interim order would not be granted, the same will lead to irreparable loss and further, balance of convenience also lies in favour of the petitioner, therefore, is of the view that it is a fit case where the interim relief is required to be granted in favour of the writ petitioner.”[Babulal Marandi v. Speaker, Jharkhand Vidhan Sabha, 2020 SCC OnLine Jhar 1017, decided on 17-12-2020]
Sakshi Shukla, Editorial Assistant has put this story together
Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.
The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.
Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.
Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.
Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.
Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.
In view of respondent 5’s complaint, petitioner was suspended.
Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.
S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.
Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.
Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.
Analysis and Decision
Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.
With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.
A very significant observation made by the Court was that,
Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.
In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.
Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.
In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court
Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.
The validity of Rule 29 of the Conduct Rules
Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.
Bench found the above-stated submission to be wholly baseless and misconceived.
No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.
Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.
However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.
No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.
Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.
A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.
Bench also observed that various statutes have prohibited both bigamy and polygamy.
A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh,1960 SCC OnLine All 128 and the Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.
In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.
Concluding with its decision, Bench held that
In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.
In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]
Over the last 50 years, the Supreme Court of India has established itself as one of the indisputably great courts of the world. No other court in the free world exercises jurisdiction over more than a small fraction of the nearly one billion men, women and children who form the population of India. The Golden Jubilee of this Court is accordingly a matter of much more than local importance. I am greatly honoured to have this opportunity to pay tribute to its achievements over this crucial and formative period of its and the country’s history.
The honour and the pleasure are all the greater for a visitor from the United Kingdom since for over two centuries, for better or worse — I hope not wholly for worse — our fortunes and histories were so closely intertwined. [Read more…]
Note: This Article was first published in Supreme Court Cases (2000) 1 SCC J-29.It has been reproduced with the kind permission of Eastern Book Company.
† On the occasion of the Golden Jubilee Celebrations of the Supreme Court of India on 26-11-1999 at Vigyan Bhavan, New Delhi.
This right guarantees free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Constitution of India.
‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school, shall be asked to pay any kind of fee/charges/expenses which may prevent him or her from pursuing and completing elementary education.
‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age groups.
Under the Right to Education Act, 2009
Providing elementary education to a child (6-14 years) who does not/could not go to school. Such child to be admitted in age appropriate class and has the right to receive special training.
Seeks to provide children right to seek transfer from a government or govt. aided school to another such school in order to complete elementary education. Such child also has right to immediately seek a transfer certificate (TC).
Mandates non-minority private unaided schools to reserve at least 25% of their entry level seats for children belonging disadvantaged sections to create a more integrated and inclusive schooling system.
Mandates the appropriate government and local authorities to provide for children’s access to elementary schools within the defined area or limits of the neighbourhood.
Lays down the responsibilities of the State and Central government for carrying out provisions of the act.
Constitution of a School Management Committee (SMC). The role of this committee to manage, monitor and support a school in its functions.
Indicates that within 3 years from the date of commencement of the act, the appropriate government and local authority shall insure that the Pupil Teacher Ratio (PTR) is maintained in each school.
Compulsory and free education for all.
Special provision for special classes.
Admission for all.
Quality and quantity of teaching.
By the people, for the children.
Ensure that every child below the age of 14 gets free and compulsory education.
Curb the problem of illiteracy.
Ensure personal growth and in turn growth of the country.
This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai
Jharkhand High Court: A Full Bench of H.C. Mishra, Shree Chandrashekhar and Deepak Roshan JJ., while deciding on the validity of the impugned notification and order, reiterated the Supreme Court observation in a catena of judgments, decrying policy prescribing reservation on the basis of “sons of the soil”.
The petitioners and the intervener petitioners are the aspirants for the post of Trained Graduate Teachers in various subjects in the Government Secondary schools, for which they underwent selection process, but could not be appointed in the schools situated in thirteen scheduled districts in the State because they were not the residents of the scheduled districts. The intervener respondents are in three categories, the first being those who were selected and appointed in the scheduled districts pursuant to the impugned advertisement, secondly, those who were selected but could not be appointed due to the interim order dated 18-09-2019 passed by the present Court and lastly, those whose selection/appointments have been affected in other services due to the aforesaid order.
In the present set of writ applications, the constitutional validity of the notification and order issued by the State Government, bearing Notification No. 5938 and Order No. 5939 dated 14-07-2016 issued in its Department of Personnel, Administrative Reforms and Rajbhasha, is under challenge. By the said notification and order, it has been stated that in the 13 scheduled districts of the State, only the local residents of the concerned scheduled districts shall be eligible for appointment on the District Cadre Class III and Class IV posts for a period of ten years from the date of issuance of the notification.
Counsel for the petitioners, Vigyan Shah, contended that in the garb of the non-obstante clause in paragraph 5(1) of the Fifth Scheduled of the Constitution of India, such notification altogether depriving the candidates of the non-scheduled districts to apply for Class-III and Class-IV district cadre posts in the scheduled districts could not be issued by the Governor of Jharkhand, as the same amounts to violation of Articles 14 and 16 of the Constitution of India. It is submitted that Article 13(2) of the Constitution of India ordains that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this provision shall, to the extent of such contravention, be void. The Counsel further made submissions placing reliance on Article 16 clause (1) and (3) and Article 35 (a-i). Reliance was placed on Kailash Chand Sharma v. State of Rajasthan,(2002) 6 SCC 562 wherein the Supreme Court while considering the question whether the domiciles of the particular districts of the State of Rajasthan could be given extra bonus marks in the selection process only on the basis of residence and whether the said exercise was constitutionally valid when tested on the touchstone of Articles 14 and 16 of the Constitution of India, said, “(…)We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself — be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis.”
The counsel referred to several other decisions, including, A.V.S. Narsimha Rao v. State of Andhra Pradesh,(1969) 1 SCC 839, Pradeep Jain v. Union of India, (1984) 3 SCC 654, Rajesh Kumar Gupta v. State of UP, (2005) 5 SCC 172, State of Orissa v. Sudhir Kumar Bishwal,1994 Supp (3) SCC 245 and the landmark case of Indra Sawhney v. Union of India,1992 Supp (3) SCC 217. Furthermore, the counsel relied on another case that bears a close connection with the present factual matrix, Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002.
Advocate General appearing for the State, opposed the prayer and placed the Presidential Notification issued in the year 2007, declaring the scheduled areas in the State of Jharkhand. Further, reliance was placed on Notification and Order dated 14-07-2016 issued by the State Government to submit that the scheduled districts in the State of Jharkhand are characterized by low human development indices, backwardness and since they are in average inferior to the social indicators in the State due to uneven topography, the notification had to be issued by the Governor for protecting the interests of the residents in the scheduled districts. Further, AG also relied on Article 162, Article 244 and the case of G. Ramadoss v. Union of India,1970 SCC OnLine AP 277, wherein the Andhra Pradesh High Court held, “(…) the Governor of a State is invested with overriding powers to make by public notification any law relating to the administration and control of the Scheduled Areas despite the other provisions including those enshrined in Part III of the Constitution… Hence, in my considered opinion, any notification or regulation issued by the Governor under paragraph 5(1) of the Fifth Schedule to the Constitution, even if it contravenes the fundamental rights of any citizen, is valid and intra vires of the powers vested in him” Reliance was further placed on Pulusam Krishna Murthy v. T.Sujan Kumar,2001 SCC OnLine AP 1044.
With respect to the validity of the notification issued by the Governor, the Court said, “We find that by the impugned notification issued by the Governor of the State, 100% reservation has been provided in favour of the residents of the scheduled districts, totally ignoring the fundamental rights of the citizens residing out of the scheduled districts, and as held by the Hon’ble Apex Court, such reservation is not permissible under the Constitution, as the outer limit is 50%, as specified in Indra Sawhney’s case”
With respect to the power of Governor, in light of Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002, the Court said, “(…) the Governor in exercise of powers under Paragraph 5(1) Schedule V of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the Legislature of the State, directing that such law shall not apply to the scheduled areas or any part thereof, or shall apply subject to any exceptions and modifications, but by that, a new law cannot be framed by the Governor of the State.
Upon due consideration of arguments extended and precedents cited, the Court said, “Notification No. 5938 and Order No, 5939 dated 14-7-2016, issued by the respondent State cannot be sustained in the eyes of law and must be held ultra vires Articles 14, 13(2), 15 and 16 of the Constitution of India. The impugned notification and order also violate Articles 16(3) and 35(a-i) of the Constitution of India, as such power is vested only in the Parliament and not in the State Legislatures. Consequently, the Governor of the State also cannot exercise such power. The same is ultra vires paragraph 5(1) of Schedule V of the Constitution of India as well, as the Governor has transgressed the limitations, in the garb of non-obstante clause therein.”[Soni Kumari v. State of Jharkhand, 2020 SCC OnLine Jhar 797, decided on 21-09-2020]
Sakshi Shukla, Editorial Assistant has put this story together
Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the petition applying the principle of judicial restraint in administrative matters.
The facts of the case are such that petitioner is an enterprise registered under the Micro, Small and Medium Enterprise (Development) Act, 2006, engaged in manufacturing of ‘Ferro Vanadium’ since 1996. Respondent floated tender for purchase of Ferro Vanadium dated 27-6-2019. Petitioner submitted bid and upon conclusion of tender proceeding, the petitioner was declared as successful bidder vide Letter of Acceptance (LoA) dated 9-9-2019 for supply of 120 MT of Ferro Vanadium to various subsidiaries/steel plants of the Steel Authority of India (for short ‘SAIL’). Pursuant to the LoA, respondent BSP placed purchase to be supplied partially by 3-12-2019 and remaining by 15-2-2020. The petitioner failed to complete the second phase of supply within the scheduled period having a backlog of supply. Respondent floated another tender dated 30-6-2020, last date of submission of bid initially being fixed as 14-7-2020, which was extended till 25-7-2020. Petitioner in view of Clause 2 (c) of the RFQ was not eligible to participate in the tender proceeding, hence the petitioner requested respondent BSP vide email dated 11-7-2020 to grant extension of delivery period so that the petitioner may become eligible to submit its bid in RFQ dated 30-6-2020. Petitioner made several efforts including approaching the Chief Executive Officer of respondent BSP vide email dated 22-7-2020. Petitioner submitted its bid on 13-7-2020. Respondent BSP has issued an amended purchase order in favour of petitioner to enable it to clear its previous backlog of 13.5MT of Ferro Vanadium, to which the petitioner complied. Thereafter on 6-8-2020, the petitioner requested respondent BSP to consider its bid and to allow the petitioner to participate in the reverse auction. This email was replied by the respondent BSP vide email dated 12-8-2020 in which it is mentioned that petitioner’s bid was not found suitable as the petitioner could not qualify eligibility criteria as mentioned in Clause 2 (c) of the RFQ. This made the petitioner filed this writ petition.
Counsel for the petitioner Rishabh Garg submitted that due to unprecedented global pandemic ‘Covid-19’ the petitioner could not be able to procure raw material from the international market. It was further submitted that the action of respondent authorities in sitting over the application submitted by petitioner for extension of the delivery period since 22-6-2020 for about 45 days is an arbitrary exercise of powers. He submitted that act of non-issuing order of extension of the delivery period has deprived the petitioner of competing in a tender proceeding which is violative to Article 19 (1) (g) of the Constitution of India.
Counsel for the respondent Ashish Surana submitted that tender issuing authority/body is different than the authority/body which places purchase order and having discretion and authority for granting an extension of delivery /supply period of the period, as mentioned in the purchase order issued by it. It was further submitted that the period was expired much prior to the declaration of lock-down in the country due to pandemic Covid-19 i.e. on 12-2-2020 itself, whereas lock-down has been declared only on 24-3-2020. It was also submitted that petitioner has been sitting on his rights time and again inspite of remedy being available and petitioners being fully aware of the provisions in the tender document.
The Court relied on judgment titled Sterling Computers Limited v. M&N Publications Ltd.,(1993) 1 SCC 445 which observed:
“While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the decision making process the courts can certain examine whether ‘decision making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”
The Court observed that in the tender proceedings while exercising the powers of judicial review under Article 226 of the Constitution of India the Court is having very limited jurisdiction to interfere with the tender proceeding. It is to be seen whether the ‘decision-making process’ is correct or not.
After perusing the facts, submissions and observations laid above, the Court held that tender notification dated 30.6.2020 for procurement of Ferro Vanadium has been issued by the Central Procurement Agency of the SAIL, the petitioner could not meet out the eligibility criteria in terms of Clause 2 (c) as he was having more than 10% of backlog of supply of Ferro Vanadium of earlier purchase order given to him by SAIL, which is the basis of rejection of petitioner’s bid. There is no challenge to Clause 2 (c) of NIT on any grounds.
In view of the above, the petition stands dismissed and disposed off.[RR Ferro Alloys (P) Ltd. v. Bhilai Steel Plant, 2020 SCC OnLine Chh 406, decided on 19-10-2020]
Arunima Bose, Editorial Assistant has put this story together
In the days of yore when COVID-19 wasn’t a pandemic and lawyers were still employed, the Supreme Court of India, the country’s Apex Court, would be engulfed in a sea of black every Monday and Friday. The sea of black would be made up of lawyers. They came from various places and were of different shapes and sizes. Some of them were called juniors and the other seniors. The juniors would be divided into two sub-branches, one being the AOR (Advocate on Record) and the other being the counsel. The seniors were also of various types. Seniors were called so either because of their seniority at the Bar or either because they would be anointed as “Senior Counsel” by the Lords themselves! The lawyers all wore black gowns of different sizes, shapes and quality based again upon their own sizes, shapes and quality. They came in hoards, unstoppable and unbeatable; and when they descended on these two days into the lair of the Supreme Court, they created quite a stir, with chaos and cacophony as their weapons of mass destruction. A constitutional philosopher would find this scene quite disturbing. He would blame the Lords for reserving Monday and Friday as “miscellaneous days”. After all, utter madness mostly never existed from Tuesday to Thursday. The Lords sought to justify the retention of “miscellaneous days” because they had the power and discretion to “grant special leave”. It’s in the holy book that they had sworn to uphold. “Don’t blame us,” they would say. “It’s in the Constitution. This is what the framers intended.”
While the framers did not intend to create the storms on “miscellaneous days”, they certainly did intend to draft into the Constitution an article that gave discretionary power to the Supreme Court to “grant special leave to appeal” from any “judgment, decree, determination, sentence or order” passed or made by any “court or tribunal” in India. This article which was originally Draft Article 112 of the Constitution of India, was later adopted as the present-day Article 136 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”). Except in certain cases, litigants wanting to invoke the jurisdiction of the Supreme Court had to generally knock on its doors with a petition under Article 136 requesting the highest court of appeal, through their lawyers or in person, to grant special leave. The matters were placed before the Lords on miscellaneous days, generally Mondays and Fridays. Lawyers in hundreds would throng the court with petition and armour to make their client’s case before the Lords. They would plead, beg, argue and pray. But at the end, the Lords would have the last word. While physical presence of the lawyers in the Supreme Court has momentarily been eclipsed by the virtual world, thanks to “that virus”, the article can thankfully still be invoked albeit in a different setting. The Lords may, while hearing a petition under Article 136 “issue notice” to the respondents, which is the first step to enter the sanctum sanctorum of the Supreme Court or they may simply refuse to grant leave and send the valiant lawyer away only to return sometime soon. However, there are times, when the Lords may pass a brief order which could generally read as follows: “Special leave petition dismissed. Question of law kept open.”
The theme of this article is to examine Article 136 of the Constitution and the concept of “keeping the question of law open”. The article has started with this Introduction in Part I, Part II of the article will briefly discuss the appellate jurisdiction of the Supreme Court under the Constitution, Part III will specifically analyse the concept of “special leave” under Article 136 of the Constitution, Part IV will critically deal with “keeping the question of law open” and lastly, the article will conclude in Part V.
II. THE APPELLATE JURISDICTION OF THE SUPREME COURT UNDER THE CONSTITUTION
1. Chapter IV of Part V of the Constitution of India, 1950 which is titled “The Union Judiciary” contains twenty-six Articles (Articles 124 to 147) that deal with the functioning, scope and nature of jurisdiction and powers of the Supreme Court of India. The jurisdiction of the Supreme Court is set out in Articles 131 to 136 of the Constitution. Article 138 confers on Parliament the power to enlarge the jurisdiction of the Supreme Court by law. Article 139 confers upon the Supreme Court the powers to issue writs and Article 143 deals with the power of the President to refer a question to the Supreme Court for its consideration by a Presidential reference. Article 131 deals with the original jurisdiction of the Supreme Court to hear inter-State disputes or disputes involving any question of law or fact between the Government of India and States. Articles 132 and 133 deal with the appellate jurisdiction of the Supreme Court, to hear cases decided by the High Court, in constitutional and civil matters which can be invoked if a High Court grants a certificate of fitness under Article 134-A of the Constitution. Article 132(1) empowers the Supreme Court to hear appeals from “any judgment, decree or final order of a High Court” in a “civil, criminal or other proceeding” that involves “a substantial question of law as to the interpretation” of the Constitution if the High Court certifies the same. The expression, “final order” includes an order deciding an issue which would be sufficient for final disposal of the case. As per Article 132(3), if such a certificate is given, then any party to the appeal may appeal on the ground that the substantial question of law has been wrongly decided.
2. On the other hand Article 133(1) also confers upon the Supreme Court the power to hear appeals from “any judgment, decree or final order” only in a civil proceeding (subject to the High Court granting a certificate), if the case involves (a) “a substantial question of law of general importance” and (b) “ that in the opinion of the High Court the said question needs to be decided by the Supreme Court.” Article 132 (2) clarifies that any party appealing may “urge as one of the grounds” in the appeal that “a substantial question of law as to the interpretation of this Constitution has been wrongly decided.” The three Judge-Bench of Supreme Court had an occasion to interpret Article 133(1) in State Bank of India v. Sundara Money, (hereinafter referred to as Sundara Money) in which the Court stated,
“A substantial question of law of general importance is a sine qua non to certify fitness for hearing by the Supreme Court. Nay, more; the question, however important and substantial, must be of such pervasive import and deep significance that in the High Court’s judgment it imperatively needs to be settled at the national level by the highest Bench.”
While interpreting the term “needs to be decided by the Supreme Court”, the Court in Sundara Money thereafter approvingly quoted the decision of the Delhi High Court in Union of India v. Hafiz Mohd. Said, the relevant portion of which reads as under,
“… Further the word ‘needs’ suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and High Court takes one of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.”
3. In Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co., the Constitutional Bench of the Supreme Court held,
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.”
4. So far as criminal matters, the Constitution made a departure from the Government of India Act, 1935 which did not have any provision “for the exercise of any criminal appellate jurisdiction by the Federal Court” and it “was assumed that the High Courts would continue to be the final arbiters in criminal cases” unless the Privy Council was willing to grant special leave to appeal. This step-motherly treatment to criminal cases was also pointed out by the certain members of the Constituent Assembly. Pandit Thakur Das Bhargava had stated, “so far as the criminal jurisdiction is concerned, my humble complaint is that it so appears that this Assembly is full of civil lawyers and they do not care about the criminal aspect of the jurisdiction of the Supreme Court.” No provision similar to Article 134 was drafted in the First Draft Constitution by the Constitutional Adviser nor in the Draft Constitution of the Drafting Committee. It was only during the debates of the Constituent Assembly on 13th and 14th June 1949 that Draft Article 111-A dealing with the appellate jurisdiction of Supreme Court with regard to criminal matters was introduced. The said Draft article was eventually adopted as the present day Article 134 of the Constitution. As per Article 134, an appeal shall lie to the Supreme Court from the judgment, final order or sentence in criminal proceedings of a High Court if the High Court has (a) reversed an order of acquittal on appeal and sentences the accused to death or (b) has withdrawn for trial before itself any case from a subordinate court and in a trial convicted the accused and sentenced him to death or (c) grants a certificate under Article 134-A.
5. Article 135 also confers on the Supreme Court jurisdiction and powers in relation to matters (where Articles 133 or 134 do not apply) in which the erstwhile Federal Court exercised powers immediately prior to the Constitution under “any existing law”, subject to a law passed by Parliament. “Existing law” is defined in Article 366(10) of the Constitution to mean “any law, Ordinance, order, bye-law, rule or regulation passed or made” by any legislature, authority or person having power to make such laws before the commencement of the Constitution.
6. Lastly, Article 136, deals with the discretionary power of the Supreme Court to grant “special leave to appeal” from “any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” Though the said article does not apply to any decision or order made by any court or tribunal under any law relating to the Armed Forces [see Article 136(2)], the said article confers upon the Supreme Court the widest possible jurisdiction to entertain any order passed in any matter by any Court or Tribunal, at any stage of its proceeding. Being the focal point of this piece, the next part of this article will examine Article 136 and the concept of special leave.
III. SPECIAL LEAVE UNDER ARTICLE 136
1. The Origin of Special Leave
The expression “special leave to appeal” in Article 136(1) of the Constitution was adopted by the framers from the Government of India Act, 1935 (hereinafter referred to as “the 1935 Act or the said Act” as the case may be). The specific expression “special leave” is found in five places in the 1935 Act. It first appears in the savings clause, namely, Section 110 in Chapter II of the said Act. Section 110(b)(iii) prohibited the Federal Legislature or Provincial Legislatures “to make any law derogating from any prerogative right of His Majesty to grant special leave to appeal from any court” except if the Act expressly provided. Section 205 which deals with the appellate jurisdiction of the Federal Court also uses the expression twice in sub-section (2). As per Section 205(2), where a High Court certifies under Section 205(1) that a case involves “a substantial question of law” as to the interpretation of the 1935 Act or Order in Council, any party may appeal to the Federal Court on the ground that such question of law has been wrongly decided and “on any ground on which that party could have appealed without special leave to His Majesty-in-Council if no such certificate had been given.” The said sub-section goes on to state that “no direct appeal shall lie to His Majesty-in-Council” meaning thereby the Judicial Committee of the Privy Council, “either with or without special leave.” Further, Section 206 of the said Act that deals with the power of the Federal Legislature to enlarge the appellate jurisdiction, states in Section 206(1)(b) that the Federal Legislature may provide by an enactment that an appeal may lie in certain civil cases to the Federal Court from a judgment, decree or final order of a High Court, without any certification but no appeal shall lie under any Act unless the Federal Court gives “special leave” to appeal. Sub-section (2) of Section 206 goes on to state that if the Federal Legislature makes “such provision” stated in sub-section (1), then a consequential provision may also be made by the Act for abolishing, in whole or part, direct appeals in civil cases from the High Courts to His Majesty- in- Council, either with or without special leave. In addition to this, Section 208 specifically deals with appeals to His Majesty-in-Council. Sub-section (a) is from a decision of the Federal Court from any judgment given in exercise of its original jurisdiction in certain disputes, without leave and sub-section (b) deals with any other case not included in sub-section (a), “by leave of the Federal Court or His Majesty-in-Council,” meaning thereby, the Judicial Committee of the Privy Council. The leave granted by the Judicial Committee would be “special leave”.
2. The Constituent Assembly Debates
a. Prior to the enactment of the Constitution, “the Privy Council had the power to grant special leave from any civil or criminal matter decided by any court in India.” Though in criminal cases special leave to appeal was granted very rarely by the Judicial Committee. As seen above, the 1935 Act also provided for provisions to grant special leave to appeal to the Privy Council. The framers of the Constitution were quite obviously aware of this position in law. The First Draft Constitution by the Constitutional Advisor included a section similar to Section 206 of the 1935 Act. Section 94, which was included in the First Draft, dealt with the appellate jurisdiction of the Supreme Court to hear appeals from High Court without a certificate. Sub-section (a) set out the types of matters which could be appealed based on valuation or based on whether the appeal involved a substantial question of law and sub-section (b) stated that an appeal could be heard without certificate if the Supreme Court gives special leave to appeal.
b. Subsequently, the Drafting Committee of the Constitution substantially deviated from the aforesaid draft and introduced Draft Article 112. The marginal note of the draft Article read as follows: “Special leave to appeal by the Supreme Court in certain other cases.” As per this draft article, “in cases where the provisions of Article 110 or Article 111” do not apply, the Supreme Court could “in its discretion” grant “special leave to appeal” from any judgment, decree or final order “in any cause or matter, passed or made by any court or tribunal” in India except States specified in Part II of the First Schedule. Such a provision was not found in the 1935 Act. The said draft article was extensively debated on 6th June 1949. Professor Shibban Lal Saksena desired that the article should have within it a power to decide appeals on “principles of jurisprudence and considerations of natural justice.” He stated that “the Supreme Court should be enabled to give judgments which may not be within the letter of the law.” This wish has been fulfilled to a large extent with the Supreme Court interfering in cases where the principles of natural justice have been violated. Shri Krishna Chandra Sharma supported this provision and according to him, “this provision has given a status to the judiciary, equivalent and in no way subordinate to the executive and legislature.” Pandit Thakur Das Bhargava was sceptical of the provision and thought that the article was “exceptionally wide” and was “remnant of the most accursed political right of the divine right of kings” which would make the Supreme Court “above law”. This assertion was rebutted by Shri H.V. Pataskar who supported the article and said that there should be “some independent body which must be the guardian of administration of justice” in all matters. According to him, the Supreme Court was not likely to “grant special leave in any matter whosoever” unless there was a serious breach of the administration of justice which went to the root of the matter. The article was also supported by Shri Alladi Krishnaswami Ayyar who stated that unlike the Judicial Committee of the Privy Council there should be no fetter on the exercise of jurisdiction of the Supreme Court under Article 112. The draft article was amended by the Assembly by deleting the words “except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply” which gave rise to the present day Article 136.
III. Scope of Article 136 and limitations on exercising discretionary power
a. Article 136 has been couched in the widest possible terms. It gives discretion to the Supreme Court to grant “special leave to appeal” from any judgment, decree, determination, sentence or order “in any cause or matter” “passed or made” by “any court or tribunal” in the territory of India. The non obstante clause emphasises that the power overrides the limitations on the court’s power to entertain appeals.” The article applies to both final and interlocutory orders and also applies to Tribunals invested with “a part of the judicial power of the State” meaning thereby quasi-judicial authorities. However, it must be remembered that Article 136 does not confer a “right to appeal” but only a “right to apply” for special leave which, if granted, confers a right to appeal so long as the leave is not revoked. Just like the Privy Council, the Supreme Court has put in place self-imposed restrictions when it comes to criminal appeals and will not entertain special leave petitions in criminal cases particularly when there are concurrent findings of fact, save in exceptional cases, such as cases of perversity or impropriety, violation of principles of natural justice, error of law or errors of record or misreading of evidence. The Supreme Court invokes the power under Article 136 in “exceptional circumstances as and when a question of law of general public importance arises.”
b. The Supreme Court “has rightly declined to fetter its discretionary power by laying down “principles” or “rules”.” The Constitutional Bench in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal has observed that it is “not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested” in the Supreme Court under Article 136 and the limitations “are implicit in the nature and character of the power itself”. Being an “exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations”. The Court went on to state as under:
“ …. It is, however, plain that when the court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has or given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of exercise of this power because the whole intent and purpose of this article is that it is the duty of this court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive…”
c. The aforesaid position has consistently been upheld. As recently as 2016, the Constitution Bench of the Supreme Court in Mathai George  refused to restrict the scope of Article 136 and stated that “no effort should be made to restrict the powers” of the Supreme Court under Article 136. The Court said that “it would be better to use the said power with circumspection, rather than to limit the power forever”.
IV. QUESTION OF LAW KEPT OPEN UNDER ARTICLE 136
1. Once the matter reaches the Supreme Court in a petition/application under Article 136, the Court has to exercise its discretionary jurisdiction (and not appellate jurisdiction) to examine whether or not leave should be granted in a given case. If leave to appeal is granted, “the appellate jurisdiction of the Court stands invoked, the gate for entry in the appellate arena is opened,” and if so required, the respondent may be called to oppose the petitioner. The Court may in certain cases dismiss the appeal after granting leave without issuing notice to the respondent. However, if the leave to appeal is dismissed, “the case for invoking the appellate jurisdiction of the court” is not made out. The order can be a speaking or a non-speaking one. In most cases, when the Supreme Court does not wish to exercise its discretion, the Court simply passes a one line order dismissing the special leave petition in limine without assigning any reasons. However, on some occasions, while dismissing the special leave petition, the Court may “leave the question of law open” to be decided in an appropriate case.
2. The question that might be asked is whether it would be proper for the Supreme Court to “leave the question of law open”, whilst exercising its discretionary jurisdiction under Article 136? As has been seen in the previous part of this column, the Supreme Court can only exercise its appellate jurisdiction in constitutional and civil matters under Articles 132 and 133 against “any judgment, decree or final order” when the case involves a “substantial question of law” as to the interpretation of the Constitution or of general importance that in the High Court’s opinion “needs to be decided” by the Supreme Court. The jurisdiction under Articles 132 and 133 can only be invoked if a High Court certifies the same under Article 134-A. In civil proceedings, Article 133 has to be read with Section 109 and Order XLV of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” ) which deals with appeals to the Supreme Court. The non obstante clause in Section 109 and savings clause in Section 112 CPC clarifies that nothing contained in CPC will “affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution.” This certificate also has to be granted in criminal matters, if the High Court feels that the case is a fit one for appeal to the Supreme Court, except in cases falling within Article 134(1)(a) or (b).
3. The discretionary and appellate powers under Article 136 has been explained by the three Judge-Bench of the Supreme Court itself in Khoday Distilleries Ltd. v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (hereinafter referred to as “Khoday Distilleries”) that has extensively relied upon its previous judgment in Kunhayammed v. State of Kerala . The jurisdiction conferred by Article 136 is divided into two stages: (1) Stage one is “up to the disposal of prayer for special leave to file an appeal” and (2) Stage two which commences only if “the leave to appeal is granted and the special leave petition is converted into an appeal.” Once the special leave petition is converted into an appeal, it is renumbered and treated as a civil or criminal appeal and heard as one under Article 136 by the Supreme Court as an “appellate court”. In such cases, the Supreme Court may, while exercising its “appellate jurisdiction” under Article 136, “reverse, modify or affirm the judgment, decree or order appealed against. Once the Supreme Court grants leave and acts upon such order of the subordinate forum or High Court, the order passed by the subordinate forum or the High Court merges in the decision of the Supreme Court and the Supreme Court’s order remains operative and replaces the order passed by the subordinate forum or the High Court. However, if the special leave petition is dismissed and leave is not granted, there is “no merger” and the order in challenge attains finality. In such cases, it makes no difference whether a special leave petition is dismissed by either a speaking or a non-speaking order. The only difference between a speaking and non-speaking order passed under Article 136 is that the speaking or reasoned order rejecting the special leave petition may contain a “statement of law” declared by the Supreme Court which will be binding under Article 141 of the Constitution on all courts in India or the order may contain findings or directions that would bind the parties to the lis and the subordinate forum or High Court. A non-speaking order binds neither the parties to the lis nor does it lay down a declaration of law under Article 141 of the Constitution.
4. Therefore, it is respectfully submitted that if the Supreme Court dismisses the special leave petition by either a speaking or non-speaking order, it would not be proper on the Court’s part to leave the question of law open for future consideration. A dismissal results in finality exclusively qua the parties to the dispute and therefore, the Supreme Court cannot go beyond the scope of its jurisdiction under Article 136 and “leave the question of law open.” This would defeat the very purpose of Article 136 of the Constitution. Further, there is no provision in the Constitution that gives the Supreme Court power to “leave a question of law open” including in Article 136 (howsoever widely it may be interpreted). Except for Article 143, the Constitution only speaks of a “substantial question of law” and nor merely a “question of law”. While it is true that the “question of law” could include within its fold a “substantial question of law”, such a question would have to be certified as one by a High Court under the Constitution. This power vests only with the High Court and not the Supreme Court. While the Supreme Court can always examine a “question of law” under Article 136, after special leave is granted, it is respectfully submitted that it cannot reject special leave and at the same time leave the question of law open. The discretionary power under Article 136 ends when the special leave petition is rejected, and the said power cannot be exercised to “leave the question of law open.”
5. Prior to the judgment of Khoday Distilleries, the Gujarat High Court had an opportunity to deal with the expression “question of law kept open” in Collector v. Liquidator, Petrofills Cooperative. Ltd., where one of the issues before the High Court was whether the High Court could reconsider a decision if the Supreme Court kept the “question of law open.” The Gujarat High Court relying on a previous decision its own Court in CIT v. Itegra Engg. India Ltd. held that it was only the Supreme Court that could reconsider the question of law in the future. According to the Gujarat High Court, the expression “question of law is kept open” would “only guard against any future contention that the Supreme Court has confirmed the ratio of the judgment under challenge whereby either giving rise to a possible contention of merger or that even in future cases, the Supreme Court would be precluded from considering such an issue in better facts”. It is respectfully submitted, firstly that Khoday Distilleries has settled the issue that dismissal of the special leave petition would not result in merger and the dismissal of the petition will not result in any expression of opinion on the judgment under challenge and secondly even if the expression “question of law kept open” is absent in the order of the Supreme Court, it would still not preclude the Supreme Court from considering such an issue at a later stage. The dismissal of the special leave petition is nothing more than a refusal to exercise discretionary jurisdiction.
6. By using the expression “question of law kept open/or is kept open” while dismissing a special leave petition, the Supreme Court could give an excuse to cheeky lawyers, like yours truly, to persuade the High Court to grant a certificate under Article 134-A on the ground that the “question of law” is “substantial” and of “general importance” and since the Supreme Court has kept the question open, the said question “needs to be decided by the Supreme Court.”
V. CONCLUDING COMMENTS
According to the author, Article 136 of the Constitution serves two purposes. One purpose is to ensure that justice is administered in the right manner and the other purpose is to ensure finality even while dealing with interim orders. The article is flexible enough to ensure that both purposes are served. Leaving the question of law open and at the same time refusing special leave to appeal, is like blowing hot and cold at the same time. Such orders lack a certain degree of certainty and above all run counter to the article itself. As has been mentioned in the previous part, nothing prevents the Court from examining a question of law in appeal under Article 136 once leave is granted. Therefore, “leaving the question of law open” for a future date is wholly unnecessary. In future, it would be advisable for the Court to not leave the question of law open while dismissing a special leave petition. This would certainly ensure both certainty and finality.
* The author is a practicing advocate at Bombay High Court and the National Company Law Tribunal, Mumbai
 Constituent Assembly Debates, Official Report, Sixth Reprint, Vol. VIII, pp. 593, 634-642. See also Vijay Hansaria, The Chronicles of Indian Constitution, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edn. 2019, pp. 227,228
Except in cases where the writ jurisdiction of the Court under Article 32 is invoked, suits filed under Article 131 of the Constitution, appeals under Articles 132-134 and Presidential references under Article 143.
 Gadbois, George H., Supreme Court of India :The Beginnings, Edited by Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018, p. 35.
Supra Note 2 pp. 596 to 633. See the speeches of Shri Rohini Kumar Chaudhari, Pandit Thakur Das Bhargava, Prof. Shibban Lal Saksena, Frank Anthony, Dr. P.K. Sen, Dr. P.S. Deshmukh, Pandit Lakshmi Kanta Maitra, Shri K.M. Munshi, Shri Jaspat Roy Kapoor, Dr. Bakshi Tek Chand and Dr. B.R. Ambedkar
 Seervai H.M., Constitutional Law of India, Fourth Edn., Vol. 3, Universal Law Publishing Co, p. 2647 para 25.57. See also Renton, A. Wood. “Indian and Colonial Appeals to the Privy Council.” Journal of the Society of Comparative Legislation, Vol. 1, No. 3, 1899, 345–380, JSTOR, www.jstor.org/stable/751912. Accessed 26 June, 2020
 Gadbois, George H. “Evolution Of The Federal Court Of India: An Historical Footnote.” Journal of the Indian Law Institute, Vol. 5, No. 1, 1963, p.19 JSTOR, www.jstor.org/stable/43950330. Accessed 26 June, 2020.
Section 94. Appellate jurisdiction of Supreme Court in appeals from High Courts in Provinces in other cases.-– Subject to such rules as the Supreme Court may make in this behalf, an appeal shall lie to the Supreme Court from a judgment, decree or final order of a High Court in a Province without any such certificate as aforesaid if –
(a) The amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, or the judgement, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and where judgment, decree or final order appealed from affirms the decision of the court immediately below, appeal involves substantial question of law; or
(b) The Supreme Court gives special leave to appeal.
The section can be found in Hansaria, supra Note 20 pp. 227 and 228.
Article 112. Special leave to appeal by the Supreme Court in certain other cases.--The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply. Draft Articles 110 and 111 correspond to the present-day Articles 132 and 133.
Supra Note 2 p. 637. See the speech of Shri Krishna Chandra Sharma.
Extracts of the judgment have been reproduced in Khoday Distilleries Limited v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal,(2019) 4 SCC 376, 388-397 para 19-23. See also the doctrine of merger.
Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:
“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”
Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.
Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.
Case against the petitioners
The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.
“It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.”
It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.
“In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.”
What is Tablighi Jamat
As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.
“There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.”
Court’s opinion and decision
The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.
(i) On violation of Visa Conditions
If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.
Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.
Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:
“Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.”
The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.
“The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.”
Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.
“Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.”
Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.
“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”
Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.
Finally, noting provisions of the Constitution, the Court concluded:
“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”
In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.
(ii) On “Smell of Malice”
Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners, the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:
“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”
(iii) On violation of District Authority’s orders
Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:
“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”
The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.
Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.
The current coat pocket edition is updated with a supplement containing the Constitution (One Hundred and Fourth Amendment) Act, 2019 (21st January 2020). It also includes Constitution(One Hundred and Third Amendment) Act, 2019, the constitution (Application to Jammu and Kashmir) Order, 2019, Declaration under Article 370(3) of the Constitution, the Jammu and Kashmir Reorganisation Act, 2019 [Act 34 of 2019]. Some of the important landmark decisions have also been given at relevant places.
Foreword by Mr. K.K Venugopal, Senior Advocate, Supreme Court of India.
Special Feature: Making of the Indian Constitution by Prof. Ranbir Singh, VC, NLU, Delhi.
The Constitution of India detailed contents, for a complete and thorough understanding of the subject.
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Comparative Chart of Indian and U.S Constitutions.
Table of Amendments and Provisions Altered/Inserted/Repealed.
The current edition gives amended and up-to-date text of Indian Penal Code, 1860. The work includes all the changes made by the Criminal Law (Amendment) Act, 2018 (Act 22 of 2018). The book also provides the Lord Macaulay’s report in 1837 to Governor-General in Council alongwith the text of all the repealed and substituted sections, this enables the reader to understand the historical perspective of that section.
List of Amending Acts and Adaptation Orders since 1948 is also added in the edition.
Civil Procedure Code, 1908 with Limitation Act, 1963 along with Special Amendments by Act 4 of 2016 and Commercial Courts Act, 2015
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Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.
A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.
Bench on perusal of the material on record, stated that to observe the requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.
Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.
As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.
Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.
Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.
In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.
Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]
Uttaranchal High Court: A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child.
The petitioner is a lady Ayurvedic doctor in Uttarakhand’s State Medical and Health Services, appointed on a contractual basis for one year which had been repeatedly renewed since her appointment in 2009. After her maternity leave, she did not rejoin service and instead claimed Child Care Leave (CCL), citing a 2015 Judgement by a division bench of the Uttaranchal High Court which allowed a contractual employee to get CCL for 730 days. Her application was rejected on the grounds of a 2011 Government Order which excluded contractual employees from availing CCL. A division bench referred the matter in the present case to a Full Bench, which had to decide whether CCL of 730 days could be granted to a contractual employee hired for only one year, and whether the High Court, exercising its jurisdiction under Article 226, could issue mandatory guidelines extending this benefit to contractual employees in the absence of any legislation in this regard.
Chief Standing Counsel for the State, Paresh Tripathi, contended that the petitioner was only entitled to a “fixed monthly honorarium,” and could claim CCL as a matter of right since she is not technically a government servant. He also argued that the petitioner is only relying upon Part IV of the Constitution i.e., the Directive Principles of State Policy, which are not enforceable. He rebutted claims of alleged violations of Articles 14 and 16, averring that regular and contractual employees form two different classes and their separation would fall under ‘reasonable classification’, and Article 21.
While acknowledging the recent worldwide emergence of the otherwise neglected concepts of maternity and child care leave, the Court stated that “the leave is not a recognition of the rights of a woman but it is more a recognition of the rights of a child.”
Bench took due cognizance of various Constitutional and statutory provisions, including Article 15(2) and several Articles under Part IV of the Constitution, which were enforced bearing the needs and rights of children in mind. It rejected the State’s argument that DPSPs are not enforceable, instead upholding their importance by citing Supreme Court judgments where the DPSPs were hailed as “fundamentals in the governance of the country.”
The Court opined that since no distinction is made between a regular and a contractual employee with respect to maternity leave, the same principle should be adopted while considering CCL as well. On the first issue, the Court held that a contractual employee employed for a year was also entitled to CCL, but not for 760 days. Rather, they can be granted paid CCL for 31 days on the same terms as “earned leave” given to other employees under the 2011 Government Order. With regard to the second issue, the Court stated that it has merely read the rights of a contractual employee into the 2011 Order, which have duly been subjected to the restrictions imposed on any regular employee under the said Order. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337, decided on 24-07-2020]
India got its freedom in 1947, and thereafter got its Constitution in 1949, which is a sacred and sacrosanct document and is also the longest written Constitution in the world. As our independent nation flourished and evolved, so did its democracy, which also highlighted the short-comings of the Constitution from time to time. To deal with such shortcomings, Parliament stood up to its responsibility and amended the Constitution from time to time.
In Democracy, election of representatives from constituencies is one of the most important processes, and so does presence of political parties. Various political parties set-up their candidates from different constituencies for elections of members to LokSabha/Legislative Assembly. These candidates get elected mostly, rather than Independent candidates.
However, party politics has been severely undermined by the politics of Aaya Rams and Gaya Rams. It has been time and again experienced that upon being elected to the legislature, lawmakers switch parties and cause political instability – often enticed by the rival party with plum public posts or, simply, money. The earliest example was from Haryana where in 1967, one Gaya Lal switched parties three times within the same day. This is in no way less than a fraud with the electors, who elect representative for a period of 5 years and is also a fraud with the political party under whose symbol such candidate contested and got elected.
Parliament though brought anti-defection law and amended it also from time to time, but people have made such laws redundant by their cunning methods.
Our country is facing similar problem even today. We have seen that in many States like Karnataka and Madhya Pradesh, ruling party MLAs have begun to resign in strategic numbers and join rival political parties for extraneous considerations best known to them. Thereby leading to reduction in the number of simple majority giving the opposition party /coalition (otherwise in minority) a shot at forming the government by demanding a floor test. Recently, it is being seen that the same strategy is being used to give advantage to the parties in getting more Members of Parliament elected to Rajya Sabha (Council of States). Thus, in the present article, I’ve made an attempt to examine the history of Constitutional amendments to deal with the malpractice of defection, how successful have they been and what future course is required in wake of current practices of horse trading.
Prior to 1974, Article 190(3)(b) of the Constitution of India prescribed that seat of a member of Legislative Assembly shall become vacant, if he resigns by writing to the Speaker. Thus, the Speaker had no control over the same and the seat used to become vacant at the drop of a hat.
The instances of misuse of this provision led to the introduction of the Constitution (33rd Amendment) Act, 1974. The Statement of Objects and Reasons of such 33rd Amendment was as under:
“Articles 101(3)(b) and 190(3)(b) of the Constitution permit a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is, therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine.”
Thus, amendment was brought to place a check on the genuineness of the resignation. Now the seat was to be vacated only upon the acceptance of resignation by the Speaker with a view that he/she shall apply his/her mind to satisfy himself/herself that such resignation is voluntary.
To stop MLAs to join the opposition parties or defying the party whip during voting in the house without tendering actual resignation, the Constitution (52nd Amendment) Act, 1985, was brought to deal with the menace of such open defection, with the following Statement of Objects and Reasons:
“1.The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the then current session of Parliament an anti-defection Bill.
The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.” (emphasis supplied)
In the aforesaid manner, Article 191(2) along with the Tenth Schedule were inserted in the Constitution of India to deal with the extra-ordinary situations of destabilising the “constitutionally elected governments” and attacking the democracy, by resorting to unfair means.
It is clear from both the above Constitutional Amendments that the Indian democracy and Constitution had been evolving on the basis of past experiences and challenges coming up. After the 52nd Constitutional Amendment, no other Constitutional Amendment has been done to deal with the new challenges which kept on coming up in this regard.
In the last one decade, new challenges have been coming up. For the lure of offices and other considerations best known to all, MLAs have started hopping on to a flight to some remote resort where they are kept under tight security even from their family members and then made to tender resignations “voluntarily”. These strategic resignations are to dodge the Tenth Schedule, which otherwise would have been attracted in case of group absenteeism. However, such absenteeism does not attract the Tenth Schedule in case of elections of Rajya Sabha. Such a situation may also give birth to infamous practice of convenient abductions or political murders as seen in history across jurisdictions, to force absenteeism.
It is interesting to note that such MLAs who resign have contested Bye-Elections on the ticket of the party which benefits from the resignation from their earlier affiliation. In fact, a lot of such resigning MLAs are awarded requisite ministries in the newly formed government, sometimes immediately and sometimes if they successfully win the bye-election as its candidate. Such practices have made resignation a powerful tool for elected legislators to negotiate quid-pro-quo deals within their party and if the need be, with the party in opposition which is already hungry for power.
Such practices mock the current Constitutional democratic set up and ridicule the public mandate. They seriously tend to commit a fraud by bringing in a lost party to power, as against the wishes of the governed. One might argue that there is nothing wrong with such practices, because if the rebel MLA is re-elected in the bye-election under a different party, it would be an automated approval of the defection. But this is a fallacious argument. Rebel MLA already having been a part of a successful campaign has a clear head start as against any other candidate which will be set up by the defected party for that constituency. Therefore, defection in the first place by way of resignation is a fraud on the trust of the public which puts such a candidate in power by virtue of his affiliation to a particular political party.
Critics may also argue that people vote for the candidate, based on his individual merits as public figure rather than on the basis of the political party to which he/she is a member of. However this holds good only in theory. It is well known that in every contested election a symbol is allotted to every contesting candidate in accordance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. Such symbols may be either reserved or free. ‘Reserved Symbol’ is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party and ‘Free Symbol’ is a symbol for candidates other than those setup by the recognised political party. Recognised political party means either a National Party or a State Party. A detailed procedure is provided in law for recognition of a National and State Party. Thus, a person gets to contest election under the ‘Reserved Symbol’ only when he is setup as a candidate of ‘Recognised Party’. It is thus clear from the above that a candidate setup by recognised party gets the privilege of contesting election under the symbol of a recognised party.
A parliamentary democracy, like that of India, functions on the basis of the party system. The Tenth Schedule to the Constitution recognises the importance of the political parties in our democratic set up. It is open for Parliament to provide that the members of the political party elected on a party ticket, act according to the decisions made by the party and not against it.
It is indeed a privilege, for a candidate set up by a recognised political party, that he gets votes based on the goodwill of the political party, including the goodwill of star campaigners of the party who solicited votes for that candidate. The political party incurs huge expenditures in the said election campaigns for the candidate. The candidate also benefits from the ideology of the political parties manifested in the election manifesto because it also influences people to vote. Hence, it is not just the candidate who is voted for, but it is the political party who is also put to vote of electors. If the contrary were to be believed there would not be any difference in the success rate between the candidates setup by the recognised political parties and an Independent candidates.
In the history of parliamentary elections in India prior to 2019 Lok Sabha Elections, a total of 44,962 independents have contested polls but only 222 of them have won to become Member of Parliament (MP) rendering a mere 0.49% chance of success. In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections. These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.
Therefore it is clear that people do vote for the symbol of political parties and there is hardly any doubt as to the vital role political parties play in the success of any candidate from any constituency. The Supreme Court has also opined that political parties are sine qua non of parliamentary democracy.
Hence, a recognised political party is at a higher pedestal than a candidate, due to which the claim of a recognised political party must be recognised upon the seat concerned of MLA, even in case of vacancy of seat for any reason (resignation, death, etc), until the results of the bye-elections are declared.
The current situations as observed in the case of Karnataka, Madhya Pradesh and Rajasthan, tell us a tale of how parties have circumvented the defection law to put the ruling party in an unfair position. The duly elected Governments in the respective States were subjected to a vote of confidence which they were destined to lose, due to the prior resignations in strategic numbers enticed by personal considerations. It also gives undue advantage in Rajya Sabha Elections also like in Gujarat and Madhya Pradesh. Such practices can set up a trend which may prove to be fatal to the concept of federalism in this country wherein an all powerful Central Government can deploy its resources to help their party in the States where other parties have formed the Governments by orchestrating a similar fall.
Therefore to remedy the situation we suggest that if a duly elected Government comes in minority, upon vacancy of seats due to resignations or death of MLAs then also such Government shall be permitted to continue until the Bye-Elections are completed upon such seats. In other words, the party on whose ticket such resignee/dead MLA won the election should have a claim over such seat. This can be achieved in the following manner:
The house strength and majority mark must be deemed to be unchanged i.e. not reduced by the number of vacancies, till the results of bye-elections to such vacant seats are declared.
The vacant seat must be counted as notional seat of the party on whose ticket such resignee/dead MLA won the election, till the results of bye-elections to such vacant seats are declared.
The Election to the Council of State (Rajya Sabha) be deferred, till the results of bye-elections to such vacant seats are declared, if the strategic number of vacant seats has bearing on the result of election to the Council of States.
This will ensure that no opposition party will gain any advantage from inducing such strategic resignations, in forming the Government or taking undue advantage in election like Member of Council of State (Rajya Sabha) but at the same time, the legitimate chance of opposition party to form the Government will not be hampered but only delayed by 6 months. It will also reinforce the true spirit of a democracy that ultimately it is the people who will decide the fate of any Government in bye-elections.
If the resignee MLA actually won the preceding elections on his independent merit, he will have a fair shot of getting re-elected in the by-elections either independently or on the ticket of different party. Similarly if the opposition party manages to win the bye-elections with numbers adequate to establish majority, they will get their due shot at forming the government in accordance with the public mandate. We urge Parliament and the polity of our country to consider, debate and bring an amendment to give effect to these proposed changes in law, as it will also ensure that the strategic resignations of today do not turn into mysterious abductions or deaths of tomorrow.
Further to support our suggestion, the time period to conduct such by-elections may be reduced from 6 months to 3 months. This will ensure that the legal fiction suggested operates only to achieve its purpose and not become a tool for further abuse.
*Former Additional Advocate General of Madhya Pradesh and Practicing Advocate in High Court of Madhya Pradesh.
** Final year student pursuing BA LLB (Hons.) from National Law Institute University Bhopal.
Punjab and Haryana High Court: Arun Monga, J., addressed a matter wherein, two girls were in a live-in relationship and were constantly receiving serious threats from their families, due to which they prayed for protection.
Petitioners sought directions to the official respondents to protect their life and liberty as they apprehended threat at the hands of private respondents 4 to 10.
Both the petitioners are girls and they are both major having mutual liking for each other. They both have been in live-in relationship for the past 6 months.
Petitioners counsel further contends that their relationship is not in the nature of marriage as they belong to same sex. They have been receiving serious threats from their family members.
Bench noted from the contents of the petition that both the petitioners have prompted to file the instant petition thinking that live in relationship between the same sex as a couple is not a criminality.
Social ethos, outlook and the philosophy appears to be evolving amongst gay couples so as to gather courage and openly come out of their closets, even though gay marriage is not yet legitimate as per the applicable marriage laws in the country. And, therefore, the live in relationships.
Court added that, What is perhaps coming in the way of petitioners is the social unacceptability of their relationship by their parents/family members, owing to which they are living under constant fear for the reasons stated in the petition which are not being repeated for the sake of privacy and brevity.
Petitioners are entitled to protection of their lives as envisaged under Article 21 of the Constitution of India, regardless of the relationship between them.
Legitimacy of their relationship with each other, is of no consequence viz-a-viz their right to life and liberty.
Court without commenting on the legality of the relationship between the petitioners or otherwise, directed the Senior Superintendent of police, Mohali to take necessary steps to grant protection of life and liberty to the petitioners. [Paramjit Kaur v. State of Punjab, 2020 SCC OnLine P&H 994 , decided on 20-07-2020]
Fundamental duties were incorporated in Part IV-A of the Indian Constitution by the 42nd Amendment on the recommendations of Swaran Singh Committee and the eleventh duty was added to the ten fundamental duties by the 86th Amendment. The practice via which an individual has become a part of an institution like the State and the collective duty of the State towards a citizen, strengthens the notion of a responsible citizenry, ultimately to achieve progress and development of the society. The rule of jurisprudence is that every right has a corresponding duty. Gandhi, while commenting on the performance of duties had once said that:
“The true source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will-o’-the-wisp, the more we pursue them, the farther they fly.”
The historical background of the evolution of rights and duties, an analysis of eastern jurisprudence and inefficacious implementation of fundamental duties advances the importance of fundamental duties. Though non-justiciable, they are rules of law.
The Supreme Court in Minerva Mills Ltd.v. Union of India recognised the proposition that although they are non-justiciable, they do hold significance –
“There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International law would no longer be liable to be regarded as rules of law.”
An individual is the fundamental organ of a State and each organ is required to work unitedly to achieve the means of welfare State. An Individual plays a vital role in a State and its welfare and is entitled to exercise rights. India, the largest democracy in the world, whose Bible is the ‘Constitution’ enshrines in its Preamble for the “People of India”, the principles of Justice, Liberty, Equality and Fraternity. Fundamental rights are guaranteed by the Constitution under Part III and have originated from a collective sourcing of other countries’ like USA, Britain, Australia and Canada. Pertinently, it is evident from the Preamble of the Constitution that it primarily focuses on rights in all spheres of life to shelter, protect and secure its citizens. Duties are counterparts of rights. Fundamental duties find their way into the Indian Constitution through the controversial 42nd Amendment.
In the present scenario, it is to be ascertained whether fundamental duties, although non-justiciable, can be means of achieving a responsible citizenry? Furthermore, assuming fundamental duties become justiciable, would they be the only touchstone of determining responsible citizenry?
This article aims at presenting the antithetical aspects of the subject-matter.
Jurisprudential and Mythological aspect of duties
Duties are an ancient concept encompassed in the eastern jurisprudence as an aspect of human behavior known as “Dharma”, staunch admirers, of which were luminaries like Lokmanya Tilak and Mohandas Gandhi. The concept of duties has its origin in the Vedas and they are in the form of religious commands. Epics like Bhagavad Geeta, Ramayana and Mahabharat, also enshrine duty as part of one’s Dharma. Thus, the eastern jurisprudence is duty oriented and right is considered as ancillary to duty or consequence of performing duty.
It is indisputable, that the framers of the Constitution did not deem it appropriate to incorporate duties in the text of the Constitution, when it was originally promulgated as there would have been several reasons for such omission in light of sufferance.
Incorporation of Article 51-A in Constitution
These fundamental duties were introduced in Part IV-A by 42nd Amendment and after receiving recommendations from the Swaran Singh Committee. Some of the recommendations made by the Swaran Singh Committee Report were rejected by the then Government like the non-compliance of the fundamental duties would be met with imposition of penalty or punishment on citizens and such punishment or law won’t be questioned in a court of law and duty to pay taxes to be included in Article 51-A.
AFTERMATH OF 42ND AMENDMENT
Whilst considering, the nature in which the fundamental duties were incorporated in the Indian Constitution during the period of Emergency with the 42nd Amendment coming into force and the majority of which was struck down by 44th Amendment leaving fundamental duties untouched, thereby, indicating even then how essential fundamental duties were. The 42nd Amendment was a controversial amendment which tried to circumvent and supersede the landmark judgment of Kesavananda Bharati, and reaffirmed by Supreme Court in Minerva Mills Ltd. v. Union of India.
ARTICLE 51-A IN ACCORD WITH OTHER COUNTRIES AND LAWS
The inclusion of fundamental duties has brought our Constitution in line with Article 29(1) of the Universal Declaration of Human Rights and the same is also inspired by Article 59 of the 1977 Soviet Constitutionand other Constitutions, Declarations and concepts. Thus, Article 51-A is in accord with the other countries and laws.
JUSTICE VERMA COMMITTEE REPORT OF 1999
The ‘Committee to Operationalise Suggestions to Teach Fundamental Duties to the Citizens of India’ under the Chairmanship of Justice J.S. Verma recommended that “duty to vote at elections, actively participate in the democratic governance and to pay taxes should be included in Article 51-A.” This Report was directed towards the far-fetched goal of achieving responsible citizenry by emphasising on awareness regarding the provisions of fundamental duties and imparting the same through medium of education.
NATIONAL COMMISSION TO REVIEW THE WORKING OF CONSTITUTION
The National Commission to Review the Working of Constitution was an advisory panel set up to pass its expert comments and suggestions on effectualisation offundamental duties of citizens determining the crucial question of whether Article 51-A served its purpose, and if not, where have people precisely failed in implementing Article 51-A? The Commission reiterated that “the first and foremost step required by the Union and State Governments is to sensitise the people and create a general awareness of the provisions offundamental duties amongst the citizens on the lines recommended by Justice Verma Committee.”
The duty which was added to the Constitution after 1976, was incorporated vide 86th Amendment Act is contained in Article 51-A(k) – the duty of every parent or guardian to provide opportunities for education to his child between the age of 6 and 14 years which corresponds to right to free and compulsory education in Article 21-A of the Constitution.
Importance of Fundamental Duties
Fundamental duties play an important role in India, seek to achieve set parameters of progress which cannot be achieved without citizens performing their duties. Expansion offundamental rights by judicial pronouncements has led to citizens only seeking enforcement of their rights without performing their duties.
“Every right has a corresponding duty” is imbibed in the very genesis of western jurisprudence in contrast with the ideology of eastern jurisprudence which can be inferred from the views of Mahatma Gandhi and Lokmanya Tilak.
In today’s world, it is particularly important that duties are practiced as a mode of civilisation and disciplined society. In line therewith, the authors now elaborate on:
How Fundamental Duties are a means of achieving responsible Citizenry?
Before answering this question, it is important to know, who is a responsible citizen? A responsible citizen is the one who performs his social, moral, ethical obligations and his duty towards state and fellow citizens. Fundamental duties are the guiding principles for citizens to perform their duties and be responsible towards the State.
Though these duties are not themselves enforceable in courts nor their violation, as such, punishable, nevertheless, if a court, before which a fundamental right is sought to be enforced, has to read all parts of the Constitution, it may refuse to enforce a fundamental right at the instance of an individual who has patently violated any of the duties specified in Article 51-A. In Javed v. State of Haryana, the Supreme Court held that fundamental rights have to be read withfundamental duties and the Directive Principles of State Policy and they cannot be read in isolation.
It is pertinent to note that, merely because a rule is not backed by sanctions for disobedience, does not mean it has no importance. It is still regarded a rule of law that is expected to be followed. This proposition was recognised in Minerva Mills Ltd. v. Union of India –
“There may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law.”
There are various legislations which give teeth to fundamental duties like the Prevention of Insults to National Honour Act, 1971, the Protection of Civil Rights Act, 1955, the Unlawful Activities (Prevention) Act, 1967, the Representation of the People Act, 1951, the Environment (Protection) Act, 1986, and the Forest (Conservation) Act, 1980 and indirectly impose obligations, provide for specifications, penalties and punishments and act as stringent regulations.
Thus, fundamental duties, though, non-justiciable, are in some or the other manner striving to achieve responsible citizenry and norms of a civic society.
The authors now elaborate on the aspects of enforceability of fundamental duties:
An important aspect other than enforceability is effectuation and implementation of Fundamental Duties, the effectuation is the ladder accompanied by elucidation and elaboration, awareness, inculcation, aspiration and implementation besides enforcement. All these aspects are taken into consideration forfundamental duties to substantially help citizens to be responsible.
Elucidation and elaboration of fundamental duties will cover up for ambiguity in their description. Awareness is an aspect which requires much more attention in a country whose illiteracy rate is substantial; Inculcation can be taken care of by imparting education, organizing conferences and advocacy of these programmes via media. The fourth aspect that is aspiration, Inculcation precedes, and implementation follows aspiration, therefore, for the success of aspiration, Inculcation and Implementation are to be carried out with due diligence. Thereafter, implementation will be an easy task to follow.
In Mohan Kumar Sighnania v. Union of India , in order to uphold the constitutionality of amendment to the Services Rules of All India Services, the Supreme Court had a recourse to Article 51-A(j). Further, In Vellore Citizens’ Welfare Forum v. Union of India & Bandkhal and Surajkund Lakes matter, the Supreme Court recognised ‘the Precautionary Principle’, ‘the Polluter Pays’ principle as essential features of ‘sustainable development’ and part of environment law of the country in view of Articles 21 and 51-A(g). There are several cases, in which Supreme Court has considered the importance offundamental duties as a rule of law.
Now, that we have elaborated upon the need to constructively inculcate and effectuate the realisation of the significance and implementation of the fundamental duties, the authors now wish to throw light upon the constitutional and precedential significance of the fundamental duties. They have created their own unique zone/position by finding a predominant spot in plethora of case laws and have established that fundamental duties, though non-justiciable are as paramount and as relevant as the fundamental rights are under the Indian Constitution.
It is pertinent to note that, there is absolutely not even the slightest spur of a doubt that insertion of Article 51-A was much needed and that the then ruling government formed by the Congress Party headed byMrs Indira Gandhi took a positive step towards the overall development and progress of the nation by taking the initiative to introduce in the Constitution, tenfundamental duties by virtue of the 42nd Amendment Act, 1976 (the eleventh duty was added later by effect of the 86th Amendment Act, 2002). The fact that the initiative pointed towards a positive direction was further strengthened by many indications which are discussed by the authors as below:
The Constitution provides for both rights and duties. The critics who say that the Constitution contains only rights and no duties have not had a close and careful look at the Constitution which also gives sanction to traditional duties;
The introduction of Article 51-A created a strong base for a concrete national character and strong harmony among all the citizens.
The enforcement of fundamental rights is, in a way, dependent on the extent or degree of care taken to follow fundamental duties. Because, if an individual has approached a court of law to seek enforcement of his fundamental right(s) then the court may reject to do so if it finds out that the individual has patently violated his fundamental duty. The case would then not lean in his favour in such a situation.
Fundamental duties, which are obligatory in nature inculcate and instill a sense of obligation and discipline amongst the citizens towards their duties. They serve as a constant reminder to the citizens that there exists a balance between rights and duties and merely assertion of rights is incorrect without being responsible for abiding by one’s duties especially when the supreme law of the nation has prescribed those duties.
They also act like a warning signal to potential criminals for preventing them from carrying out anti-national and anti-secular activities thereby simultaneously providing a platform to citizens for active participation in the society and playing a constructive role in its development.
The Court by considering fundamental duties can also save a law from being declared as unconstitutional and declare it as reasonable if the law incorporates any of the eleven duties. This is how it can be used to determine the constitutionality of a law.
The Supreme Court in AIIMS Students’ Union v. AIIMS has held that fundamental rights and fundamental duties should be given equal importance. Furthermore, The Supreme Court in quite a few cases has been seen protecting thefundamental duties which only goes to show that thefundamental duties have an important status in our society and that the judicial reforms and introduction of Article 51-A via the 42nd Amendment Act and 86th Amendment Act were not bad in law or unnecessary. On the other hand, they have done something positive for the country if at all they have done something.
In M.C. Mehta v. Union of India, the Supreme Court made it compulsory for all educational institutes to organise a one-hour lecture on protecting and preserving the natural environment and made the Central Government duty-bound to make this a rule in all such institutes and make it a part of their curriculum and issued certain directions in general to the Central Government and citizens on maintaining a healthy ecology and preserving the natural environment;
With a view to strike a balance betweenfundamental rights andfundamental duties, the petitioner in Rangnath Mishra v. Union of India addressed a letter to the President of India to pass directions to the State Government to raise awareness by educating citizens on fundamental duties. This was taken up by the Supreme Court as a writ petition when at the same time the National Commission after reviewing the Constitution submitted its report to the Government which recommended the Government to create awareness among citizens and follow the procedure as laid down in the Justice Verma Committee Report for implementing thefundamental duties;
In Dr. Dasarathi v. State of Andhra Pradesh, the Court held that it is the duty of every citizen to constantly strive towards excellence in the various spheres of life and continuously make relentless efforts to achieve accolades and that is how the nation as a collective body of its citizens will constantly move towards new levels of excellence.
The above examples only go to show that the insertion of Article 51-A was in a way necessary and a need of the hour as it is a means to hit a balance between civic rights, liberties and freedoms and civic obligations. The said article has gained and retained the confidence of all political parties and has remained on the statute book for more than 35 years. Moreover, the addition of Article 51-A brings our Constitution in line with Article 29(1) of the Universal Declaration of Human Rights, 1948 which provides that: “Everyone has duties to the community in which alone the free and full development of the personality is possible.” and Constitutions of other major countries.
The criticism and fallback onfundamental duties as sufficient means of achieving responsible citizenry has been addressed hereunder:
Just as there are two sides to a coin, there are two aspects to the sufficiency offundamental duties.Introduction of the 11fundamental duties are no doubt a positive and substantial step towards developing and sustaining a responsible citizenry, but does that mean that our society, whose socio-economic fabric is changing almost on a regular basis, does not need or has no space for more fundamental duties?
The answer is not entirely. Assumingfundamental duties become enforceable, yet there are many other duties which links with the concepts of duties and responsible citizenry. Even today, it is felt by a section of people that sincefundamental duties are non-justiciable or unenforceable, they are as good as a dead letter or a mere paper-book that does not have a sufficient enforcement mechanism to support its implementation. While this might ring a partly true side to the ear, it would also not entirely be incorrect to question the duties that the State owes to its citizens. Is the State providing for implementation facilities and creating an inductive environment by acting on suitable means and methods? The authors elaborate on the same herein below:
Duty to vote: It is our fundamental right to vote. One of the principal recommendations of the J.S. Verma Committee was the “duty to vote at elections, actively participate in the democratic process of governance and to pay taxes should be included in Article 51-A of the Constitution”.
Duty to pay taxes: Jackson and Reed, JJ. in Miller Bros. v. State of Maryland have taken note of the duty of a citizen to pay taxes in the following words – “The fact of residence creates universally reciprocal duties of protection by the state and of allegiance and support by the citizen. The latter obviously involves a duty to pay taxes, and their nature and measure is largely a political matter.” The main problems faced by the Indian Government as far as tax matters are concerned are the tax gap, problems related to tax planning, tax avoidance and tax evasion like in cases like McDowell, Azadi Bachao andVodafone case.
Duty to help accident victims: Under the law of Torts, it is a tort to not help the accident victim in case of an accident. The Karnataka Government has also decided to pass a law protecting people who have helped victims from civil and criminal liability thereby encouraging them to provide the assistance to the State. With no legislation related to this subject, the Supreme Court, in 2014 urged the Union Government to frame guidelines for protection of ‘Good Samaritans’, or helpful bystanders, and a Standard Operating Procedure for their implementation.
Duty to keep premises clean: Article 21 has been interpreted by the Supreme Court to include the right to a clean environment. To tackle this issue, Prime MinisterNarendra Modi introduced the ‘Swachh Bharat Mission’ on 2nd October, 2014 which focuses on building toilets and solid waste management plants.
Duty to raise voice against injustice: The victim can report the crime and aid the society and bring the offender to book. The Protection of Children from Sexual Offences Act, 2013, imposes a duty to report a sexual offence on specified classes of people.
Duty to support bona fide civil society movements: The concept of ‘civil society’ can be traced back to the pre-modern times. And in modern times, the role of civil societies can be traced to the principles of Gandhism of ‘volunteerism’. Also, the Bhoodan Movement and JP movement were based on disappointment of the ordinary citizens with institutions of governance. Thus, it is evident that the duty to support civil societies has existed in the Indian contextual societal framework since old ages and thus there flows an obligation on the citizens to support these movements and tackle issues like human right violations, corruption and indifference on the side of elected governments to remedy the situation. When the underprivileged are too in-equipped to stand up and fight for their rights, it becomes the moral obligations of us citizens to support genuine civil society movements and fill in the gap left by the executive in implementation of the government policies.
Thus, the authors strongly propose that there ought to be an addition to Part IV-A of the Constitution and every citizen should sense his obligation to support the endeavours of society and ultimately satisfy their quest for change. Authors would also like to clarify that these are only some of the duties which form a drop in the ocean of other duties that can be incorporated under Part IV-A to achieve a responsible citizenry.
Duties of the State
While in the aforementioned paragraphs, we have discussed about the duties the citizens owe to fellow citizens and the State, it would not entirely be incorrect to question the State about its duties. Some of the natural questions would be the accountability and responsibility of the State towards its citizens. Is the State truly eradicating poverty as, according to a recent survey more than 60 per cent of India’s population is still fighting poverty and unemployment, and helping roadside orphans who have no shelter over their heads? Is it actually making relentless efforts to impart free and compulsory education as Article 21-A guarantees? Is it by all means and resources fighting corruption? Is it organising nationwide campaigns to reduce religious intolerance by spreading the message of secularism? Is it doing substantial work in the areas of gender equality at every stage when it is so necessary for women to be uplifted and given equal status and opportunity owing to the very patriarchal attitude of majority of men in the country? Is it implementing all laws made by the Constituent Assembly?
The authors now propose to highlight some important aspects of implementing fundamental duties and the difficulties and/or hindrances which will possibly be faced by the State whilst implementing fundamental duties:
Imperfect obligations are rights without corresponding duties and duties without corresponding rights. In Minerva Mills Ltd.v. Union of India , it was observed:
“It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as a writ in water. A controlled Constitution will then become uncontrolled.”
However, there are some jurists who say that there can be duties without corresponding rights which are called as ‘absolute duties’ whereas duties having corresponding rights are known as ‘relative duties’. On the other hand, duties can be classified into positive and negative duties, besides, primary and secondary duties. Thence, imperfect obligations serve as a hindrance to achieve a responsible citizenry.
Visualise this example of a pitiable pauper who earns just Rs. 50 a day and can barely afford his daily meal. How will he gather the resources to “strive towards excellence” ? This is not merely one individual. According to a recent survey regarding poverty and illiteracy, 60% of India’s population is fighting poverty and unemployment. The legislature cannot insensitively draft policies and impose duties upon citizens when half the population is facing hugely degrading problems like poverty, lack of means to support family, lack of education, over-population due to lack of literacy and sub-issues arising from these main ones, corruption, etc. Authors intend to convey that assuming thefundamental duties become enforceable, they are not the only means of achieving a responsible citizenry because, there are an umpteen number of issues and road-blocks bothering individuals concerned and coming in the way of the country’s progress.
AT ONE’S OWN WILL
Where an individual, who is a fundamental unit of the society is himself driven and motivated to truly contribute and be a part of making a difference to the society, there remains no grave necessity of fundamental duties being made enforceable.
Some of the critics to the fundamental duties feel that the duties, on the ground that the language used in the Constitution under Article 51-A is vague, common and ambiguous are very unclear and equivocal in terms of its meaning and depth. Going by the criticism, words like ‘ideals’, ‘institutions’, ‘brotherhood’, ‘humanism’, ‘scientific temper’ create an ambiguous and shade-worthy area in the minds of the interpreters of the fundamental duties. As every action has an equal and opposite reaction, fundamental duties also as much as they garnered the amount of respect and recommendation (for its implementation) as they did, they also attracted an equal amount of criticism. The major number of critics complained that the legislature failed in its primary duty to make its draft, its work, its creation a clear and understandable piece of work. It is trite law especially a cardinal principle of the interpretation of statutes, that the legislature ought to create the statute in unequivocal terms and its very meaning ought to be clear and unambiguous because the greatest aid to interpreting a legislative genus is primarily its very own language and if the language is itself unclear, how will the people (for whom ultimately law is made) make out its true significance and abide/obey the law. Also, given that the majority of the Indian population, the masses are illiterate, how will they be in a position to understand and decodify this mysterious work of law?
EXECUTIVE INTERFERENCE AND MANIPULATIONS
Assuming, if fundamental duties become enforceable then a citizen conducting a protest against a policy of the Government, (in the light of the current situations) there is a high probability of the Government abusing its power, to drag citizens to the court of law for non-obedience of their fundamental duties. Under the garb of holding us liable for violation of fundamental duties, it can curtail our fundamental rights.
NO NECESSITY OF INCLUDING MORAL AND ETHICAL DUTIES
The Indian culture and secular ethos show key traces of the concepts of ‘dharma’ and ‘karma’ and such values have been ingrained in the Indian culture since time immemorial. Indians are known across the globe for their commitment to spiritual, secular, traditional and cultural beliefs. They are almost inalienable. Duties like respecting our elders, respecting the nation, investing relentless efforts in achieving excellence in various fields, to develop a scientific temper and commitment to intellectual reforms, to promote brotherhood are a few of the many. Therefore, the insertion of fundamental duties was not necessary at its threshold (adhering to this particular point).
After putting forth this view, it necessary to state the other side of this critique. Fundamental duties after all the scrutiny and examination they have been subjected to, deserve a fair share of appreciation as well. These fundamental duties form a breathing inseparable organ of the Constitution, the supreme law of the land and the world’s longest written Constitution.
In modern context, it has become increasingly important to inculcate the civic obligations among Indian citizens. This object can be achieved by adding new duties to the existing list of duties under the Constitution while simultaneously laying emphasis on the performance of the existing ones. Excessive emphasis on exercise of fundamental rights and their ever-increasing scope as interpreted by the judiciary has made it almost necessary for the codification relating to civic obligations. Thus, fundamental duties serve as a core of a mutual coherence and welfare State. It would not be out of place to conclude this critique with what was said by Sir Robert Welch – “The real freedom of any individual can always be measured by the amount of responsibility which he must assume for his own welfare and security.”
* BBA LLB (Hons), 4th year, University of Mumbai Law Academy
** BLS LLB, 5th year, Government Law College, Mumbai
Almost half a century ago, on 23-4-1973, the legal fraternity in India and perhaps the world over, rejoiced as the largest ever Bench constituted by the Supreme Court of India gave birth to the Basic Structure Doctrine vide its verdict in His Holiness Keshavananda Bharati Sripadagalvaru v. State of Kerala (‘Keshavananda Bharati’), thereby forever circumscribing the amendment powers of Parliament. Objectively viewed, one cannot overstate the impact and influence that the Doctrine has had on Indian constitutionalism. In fact for those looking to redeem the Indian Constitution from the onslaught of incessant amendments during that era, it is akin to a ‘re-birth’ thereof; altering the scope and sphere of Article 368 for possibly all times to come. Inherent, therefore, to the study of Kesavananda Bharati verdict is an examination of how the Constituent Assembly eventually arrived at Part XX of the Constitution of India.
The task of drafting the ‘amending procedure’ for the Constitution came up before the Union Constitution Committee (UCC) sometime around early June 1947. From the very beginning, the members of the UCC were divided into two camps – those favouring a stricter amendment process and those in favour of a more facile one. Notably, stalwarts such as Nehru and B.N. Rau (and to an extent even Ambedkar) always remained in favour of the latter such that ‘a Constituent Assembly, not elected by adult suffrage, can draft a Constitution by simple majority, but a Parliament elected by adult suffrage cannot amend it except by special majorities’ .
In fact, between June 1947 when the UCC began its meetings and February 1948 when the Draft Constitution was laid out before the Constituent Assembly, the amending procedure began to shape-up in the manner in which it would appear vide Article 368. Nevertheless, all throughout that period, an un-alterable ‘basic structure’ such as to render certain parts/chapters of the ensuing Constitution beyond the pale of Parliament’s amendment powers was never the cynosure of any debate. In fact, the Union Constitution Committee was rather preoccupied with internal squabbles over constitutional amendment by ‘simple majority’ or by way of a ‘special procedure’ involving 2/3rd majority as well as the State Legislatures. As has been enunciated above, Nehru and Rau (perhaps to an extent even Ambedkar) always remained in favour of a ‘pliant’ Constitution such that it could be moulded by future Parliaments towards the social and economic exigencies likely to be faced by the newly formed Republic of India. In fact, Nehru remained steadfast in his demand for amendment by a simple majority and though eventually Part XX of the Constitution did not incorporate the same, many provisions of the Constitution carry that legacy, most notable being the power vested in Parliament to alter State borders without their consent and without having to adopt the procedure laid out i.e. requiring a majority of not less than two-thirds of the members of that house present and voting.
B.N. Rau presented his Draft Constitution just a month after independence in September of 1947 and though the amendment clause therein favoured the flexible approach based on simple majority, for the first time perhaps there was enunciation of an express prohibition against amending the provisions for reservation of seats for minorities in the legislatures. However, the Drafting Committee was at odds with the same and the Draft Constitution, 1948 as was presented to the President of the Constituent Assembly was more in the nature of Part XX as appears in the Constitution of India.
What piques one’s curiosity, however, is that in consonance with Rau’s draft, Part XVI of the Draft Constitution also included a prohibition on amendment of reservation of seats for Muslims, Scheduled Castes, Scheduled Tribes or Indian Christians in Parliament and State Legislatures. Some may embark on the misadventure of citing this as a primitive form of the Basic Structure Doctrine, however, that would be disingenuous to say the least. During the intervening years of 1947 and 1949, records clearly point to a preoccupation of the Constituent Assembly, as also others involved with the framing of the Constitution, with the ‘how’ rather than ‘whether’. In fact, as Granville Austin has lucidly encapsulated in his work, the Constituent Assembly was very much conscious of the fact that their efforts were prone to error and thus did not look favourably upon an uncompromising procedure. At this juncture several doubts were raised as to the representative character of the Constituent Assembly.
Yet Ambedkar, despite being in favour of the importance of an amending process in the Constitution of a federal republic, was never tolerant of any insinuation that strayed towards impugning the representative character of the Constituent Assembly. It was thus in the above background that he eventually, about a couple of months before adoption of the Constitution on 26 November 1949, introduced Amendment No. 118 to Article 304 of the Draft Constitution, thus finally giving shape to the amendment procedure as would thereafter be contained in Article 368 (Part XX) of our Constitution.
Perusal of the Constituent Assembly Debates of 17 September 1949 would bring out that despite the widespread support for Nehru’s views in favour of a pliant and flexible approach towards amendment of the Constitution and Article 305 of the Draft Constitution, the final version was wholly devoid of any such entrenched provisions. Thus, before concluding this discussion, two conspicuous omissions on part of the Framers of our Constitution must be evinced. Firstly, vide Article 305 of the Draft Constitution, though certain subjects were put beyond the pale of constitutional amendment for a period of 10 years, surprisingly very little thought was given to entrenching the portion containing Fundamental Rights. Secondly, when Ambedkar moved his Amendment No. 118 as above, Article 305 was done away in its entirety as an express exception to the amendment procedure of the Constitution.
Evidently thus, without going into a merit based discussion on the Basic Structure Doctrine, perhaps to the Constituent Assembly the Constitution was a constantly evolving document in line with the social and economic realities and towards that the Framers were at ease to not entrench any part thereof. The happenings of early 1970s in all probability forced the hand of the Supreme Court in superimposing the embargo of basic structure. It thus becomes absolutely necessary that the Indian Republic be willing to expunge and efface it in line with the evolution of times as may present in the future.
It has been observed that the caste of accused and other persons is being incorporated by the officers/officials of Registry of this Court and Presiding Officers of Subordinate Courts/Special Courts/Tribunals in judicial and administrative matters, which is against the spirit of Constitution of India and not in consonance with the directions of Hon’ble Rajasthan High Court issued vide order dated 04.07.2018 in S.B. Cr. Misc. Appl. No.376/2018.
Therefore, it is enjoined upon all concerned to ensure that caste of any person including accused is not incorporated in any judicial or administrative matter.
Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma, ACJ and Manoj Kumar Tiwari, J., heard a writ petition which was treated as public interest litigation wherein a prayer was made to provide financial assistance to the priests with respect to the hardships faced by them.
The Court took cognizance of a letter addressed by the petitioner, highlighting the financial difficulties faced by the Hindu Priests who performed the Vedic rites and religious ceremonies throughout the State of Uttarakhand. It was stated that they lived a life of penury which disabled them to impart education to their children and, therefore, they prayed for financial assistance and pension from the State Government. The Court pressed upon the fact that though there being a prima facie case, it could not be studied in isolation as similar financial hardships would also be faced by the priests of all the religions including Islam, Christianity, Sikhism, Jainism, Buddhism, etc.
The Court was of the view that priests assisted the citizens in enjoying the freedom of conscience and to profess, practice and propagate their respective religion and hence the prayer shall be considered. Accordingly, the State Government was directed to apprise the Court on what financial assistance could be rendered to the Hindu Priests, Maulwis, Granthis/Raagis and Christian Priests which enabled them to make both ends meet within the parameters of Articles 25 and 26 of the Constitution of India. The matter is listed on 06-09-2018. [Subhash Joshi v. State of Uttarakhand, WP (PIL) No. 117 of 2018, order dated 29-08-2018]
Karnataka High Court: While passing the order in a writ petition filed under Article 226 and 227 of the Constitution, a Single Judge Bench of Vineet Kothari, J. dismissed the petition holding that the petitioner has not allowed the respondent Authorities to consider the case on merits and proceed further in accordance with law and this amounted to abuse of process of law.
The petitioner was aggrieved by the Occupancy Certificate issued by the respondent Authorities in favor of the 5th respondent to develop and construct a building on the site owned by the petitioner. The petitioner alleged that the 5th respondent deviated from the sanctioned plan and thus the Occupancy Certificate needs to be cancelled and the building be demolished. It was also brought to the notice of the Court that the respondent Authorities had already withdrawn the impugned certificate.
The Court held the petition to be misconceived. There were various remedies available to the petitioner under the KMC Act, 1976. The main relief prayed for in the petition- withdrawal of the certificate- stood granted by the respondent, already. As regards the further process, the Court held that it was premature for the Court to direct the respondent Authorities at this stage.
The Court was of the opinion that even if the public bodies do not take appropriate step in the matter, the only remedy available to the complainant is to avail the remedy by way of civil suits in the competent Civil Court under Section 9, CPC. The complainant has to make specific factual averments and lead appropriate evidence in such Civil Courts before claiming any relief. The complainant should first pursue their remedy before the Departmental Authorities under the KMC Act and then the Civil Courts. Initiating such legal process from the top by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution is an abuse of process of law and bypassing the relevant remedies could not be appreciated. Accordingly the petition was dismissed without any order as to costs. [H.K. Chanchala Devi v. State of Karnataka, 2017 SCC OnLine Kar 1829, decided on August 16, 2017]
In the last three decades, a time the Supreme Court of India has widely been seen as a Court that governs almost as often as it decides, Tehmtan Andhyarujina unfailingly held a mirror up to it. A self-professed judicial conservative, Andhyarujina argued to limit judicial power and bolster parliamentary sovereignty in several constitutional cases. This was not because he felt Parliament to be in some sense better functioning than the Court. In fact, far from it. In a lecture at the University of Oxford in 2012, he lamented about disruptions that had crippled Parliament; in the same lecture he extolled the virtues of Indian law and its courts. Instead, he believed in parliamentary sovereignty because the Constitution demanded it. And Andhyarujina was a true servant of the Constitution.
His reading of the Constitution was undoubtedly shaped by H.M. Seervai, in whose chambers Andhyarujina started out as a junior lawyer. Seervai appeared for the State in Kesavananda and argued that the Court had no power to strike down an amendment to the Constitution for violating the basic structure. Andhyarujina, present in the Supreme Court for the 66 days during which Kesavananda was heard, meticulously recorded Seervai’s arguments and also astutely observed courtroom proceedings—the questions posed by the Judges, their ideological inclinations, the master stratagems of Nani Palkhivala, the lead counsel for the petitioner and the murky politics that was being waged under the veneer of a civil judicial proceeding.
His book, titled The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (2012) is a masterful work filled with personal reminiscences of those 66 days. It is a combination of rare personal insight pressed into the service of larger constitutional arguments. For example, Justice Dwivedi, one of the six dissenting Judges, Andhyarujina writes, said during the proceedings in open court that if the petitioners conceded that the fundamental right to property could be amended he would be “prepared to procure from Parliament that all other fundamental rights can be left unamended” (p. 24). Justice Dwivedi was by no means the only Judge who appeared to have a predetermined agenda (in his case, a pro-Government one) during the hearings. Justice Hegde, one of the majority Judges, gave such short shrift to Seervai’s arguments, that Seervai contemplated never appearing before the Supreme Court again (p. 23). The larger point is not lost on any reader—that while Kesavananda1 might represent the zenith of Indian constitutional law, underneath the lofty statements of law creating the basic structure of the Constitution, lay a deeply political Court locked in battle with Parliament.
For Andhyarujina, the resolution of such a battle lay in the text of the Constitution. As Advocate General of Maharashtra, he argued to save the constitutionality of several legislations passed by the State of Maharashtra by urging the Court to read provisions of law with due deference to the legislature. Notable is his defence of the Explanation to Section 2(26) of the Bombay Sales Tax Act, 1959 inserted by way of amendment in 1988. This provision excluded goods held by trademark and patent-holders from the purview of “resale” thereby not allowing the value of such goods to be deducted when sales tax is to be computed. Andhyarujina successfully argued that this provision was in pith and substance on sales tax and had no effect of freedom of trade and commerce. In the Supreme Court, in Aruna Ramachandra Shanbaug he urged the Court to recognise passive euthanasia for persons in permanent vegetative state as legal, with certain safeguards. This too was based on his view that the right to life in Article 21 of the Constitution meant a life with dignity, something that a person in a permanent vegetative state did not possess.
But it was in the leading constitutional cases of the day that Andhyarujina shone, not necessarily because he always emerged victorious, but more importantly because he always spoke truth to power. In I.R. Coelho, he argued to save the constitutionality of the Ninth Schedule to the Constitution which immunised statutes from judicial review; in Supreme Court Advocates-on-Record Assn., he argued that a concern for judicial independence could not extend to striking down a perfectly reasonable constitutional amendment only because judicial primacy in appointment of Judges was not as secure as it was in the collegium system. Educated in the finest traditions of English constitutional law, Andhyarujina believed in parliamentary sovereignty and fought till the end to protect it from what he saw as the “path of deviation” on which the Supreme Court had set itself through its activism. This was not intended to berate the Court, but instead to guide it in a direction as the Constitution, in Andhyarujina’s view, demanded.
I must end on a personal note. I was privileged to know Mr Andhyarujina in the last ten years of his life. He gently advised me to reconsider returning to India from the United Kingdom as in his view, the Supreme Court was overrun by “piddly” matters; to make good his advice he examined my doctoral thesis at the University of Oxford, hoping perhaps that his advice and comments might make me remain there. However, when I did return, we spent some wonderful evenings on his Hauz Khas Enclave terrace arguing about the Constitution, sparring over the influence of the common law on the Indian legal system, and debating whether the basic structure doctrine was legitimate. True to my republican faith, I staunchly argued against it; a lawyer to the end, Mr Andhyarujina, with that familiar twinkle in his eye, respectfully demurred.
[T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, died on 28-3-2017. He was 83.]
The power to make laws in most modern societies lies in democratic institutions. Under the Constitution of India (“the Constitution”) as well, this power is entrusted with the legislature. However, Article 123 of the Constitution allows the head of executive (which is the President under the Constitution) to promulgate ordinances to deal with situations which require immediate attention. It is considered to be a very important provision of the Constitution (with two major constitutional amendments focusing on them), and has come to be accepted despite its obvious and inherently undemocratic nature. This article intends to show that this provision to promulgate ordinances is often misused and needs to be amended.
The President is allowed to exercise legislative powers in cases which require “immediate action”. It would appear, however, that this legislative power is exercised by the President without any urgency. Several ordinances are regularly passed on subjects where no immediate action is required and which would not justify bypassing the democratic process. In fact, the number of ordinances promulgated and the subject-matters dealt therein would make one believe that the Indian legislative system is functioning with President only.
It is obvious that this was not what was intended by the Constituent Assembly when the provision for ordinances was included in the Constitution. The use of the words “immediate action” make this clear. It was also suggested in the Constituent Assembly to change the heading of the Chapter to read “Extraordinary Powers of the President” instead of the current “Legislative Powers of the President” to make it clear that the powers “are extraordinary; that is to say, they are not to be employed in normal times”.
It would appear that the provision is often used by the ruling Governments to quickly enact laws that (in their opinion) do not require much debate or attention. This is because the President has to act on aid and advice of the Council of Ministers, and keeping in mind the ordinances promulgated in the past, amendments to the existing laws is often made through ordinances. Ordinances appear to be a loophole that the ruling Governments have found to push laws without bringing much attention or spending time in Parliament.
Romesh Thapar explains, “[government] by ordinance is the pattern these days. Apart from the fact that the speculators have to be curbed, there is no time to go through the tedious procedures in Parliament which permit disruptive lobbies to build, lobbies that paralyse action.” None of this, however, justifies the fact such procedures have practically just become tricks to bypass the ordinary democratic process. In a later article, Thapar agrees, “There is not a situation in India which cannot be handled by the normal law of the land, that is, if the instruments of policy implementation are kept intact and not reduced to disarray by politicians and fawning bureaucrats.”
An inherent premise of the above argument is that if something is undemocratic, it is undesirable. However, there is no reason for this to be true. A good decision can come out of an undemocratic procedure as well. An analysis of ordinances promulgated in the recent past would reveal that most of them are introduced as bills in Parliament and accepted. This would imply that the democratic process has approved of the ordinance as being correct and desirable.
Why, then, is the lack of democracy in ordinance procedure being portrayed as bad in the present article? This is because of several reasons. Correctness of decision aside, the fact, in theory at least, remains that the provision is undemocratic at heart — a State may be ruled by a monarch for a long time, however, that does not justify his exercise of power over other people regardless of the correctness of the decision. Further, such a State does not have any legitimacy attached to it. As several authors have argued, legitimacy of institutions runs to the core of a State, and a failure to justify its legitimacy could directly attack its sovereignty.
Moreover, just because practically a provision is used only to arrive at the correct decision does not mean that this will remain the case in the future as well. Many scholars agree that there is a “[p]ossibility of abuse of the ordinance-making power” and there is “no guarantee that such powers will not be abused in the future”.
This potential for misuse arises from the way Article 123 is phrased and the lack of provisos or safeguards thereto. The President may promulgate ordinances if he is satisfied that there are circumstances which make it necessary for him to take action. While the ordinance is amenable to judicial scrutiny, the court would not look into the preconditions of necessity. Moreover, even the concept of mala fide would not apply as legislative intentions are out of judicial reach. Further, it is for the petitioner to prove that necessary circumstances could not have existed. Such a scheme of things is strange — the burden of proof should be on the executive to prove that the undemocratic use of power was necessary, and not vice versa.
One of the biggest factors adding to the potential for misuse is the fact that ordinances can go without adequate legislative review for more than half a year at a time. And even if the ordinance lapses or is repealed by the Legislative Assembly, the ordinance would not be void ab initio. Any legal effect caused by the ordinance in that period would continue to exist. Thus, even if the democratic institutions are to approve or disapprove of the acts later, the fact is that the undemocratic laws can affect the nature of the Indian State quite drastically.
Several authors have argued that any provision for ordinances is unnecessary and should be taken out of the Constitution. A.G. Noorani has argued:
How do countries like the US and Canada deal with such a situation? In the same way that any other country does — summon the legislature urgently. [This power] has been abused not only by the States but also by the Centre with no check by the Supreme Court.… The precondition of urgency has been ignored…. The existence of the circumstances has never been probed into by the courts.
Various other authors support this — “Legislation by ordinances is not extra-constitutional, but improper and undemocratic.” Prof. M.P. Jain agrees with Noorani, saying that “[t]he executive in Britain or the USA enjoys no such power.” In a different article, Noorani argues, “History will be made the day the Supreme Court holds that the very power to make … ordinances is judicially reviewable and is subject to strict conditions”.
Such a situation, where the power to promulgate ordinances is completely taken out of the Constitution of India would indeed be ideal. However, if the State is of the opinion that it is necessary to retain this provision (to deal with urgent situations, for instance), it is essential that essential safeguards be put into place.
The time period for which the ordinance is to be in force needs to be reduced drastically, to a few weeks at most. This is because if there is a situation which requires immediate attention, then the legislature needs to be summoned as soon as possible to deal with it. Ordinances should only be used as a temporary measure till the legislature assembles for the emergency meeting.
Further, provisos must be included to the effect that necessity of action or urgency to promulgate action needs to be proved by the executive. Ordinances should only be used for situations of utmost emergency, and having a provision which requires material to be shown to ensure that necessary conditions exist is necessary to balance the provision with at least some responsibility added to the executive. Another provision that could be included to ensure that ordinances are promulgated only in situations of urgency is to include a restriction which says that ordinances can only be issued when emergency has been proclaimed by the President. This would again make sure that ordinances are not issued unnecessarily when a democratic procedure could be followed. Ultimately, the aim should be to reduce the undemocratic elements to a minimum (or, if possible, completely eliminate it), and where in the Constitution it still remains, high requirements be imposed for its usage.
*3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University, Sonipat.
 The Constitution (Thirty-Eighth Amendment) Act, 1975 and the Constitution (Forty-Fourth Amendment) Act, 1978.
 For instance, Arbitration and Conciliation (Amendment) Ordinance, 2015; Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015; Negotiable Instruments (Amendment) Ordinance, 2015; among many others.
 The Trouble about Ordinances, Romesh Thapar, Economic & Politicial Weekly (13-7-1974).
 Law or Ordinance?, Romesh Thapar, Economic & Political Weekly (23-11-1974).
 Ordinances promulgated in and after 2014 have been considered for this analysis.
 Mithi Mukherjee, An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution, in India in the Shadows of Empire: A Legal and Political History, pp. 199-201 (Oxford University Press, 2011).
Introduction to the Constitution of India, Durga Das Basu, Nagpur LexisNexis, (22nd Edn., 2014) p. 207.
 Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).