Case BriefsHigh Courts

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.

Petitioners’ case

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.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

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Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Op EdsOP. ED.

Introduction

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.

Historical Development

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[1]. 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.”

(emphasis supplied)

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[2], 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.

  1. 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.

Current Scenario

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.[3] In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections.[4] These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.[5]

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.[6]

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.

Conclusion

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.

[1] Constitution (33rd Amendment) Act, 1974

[2] Constitution (52nd Amendment) Act, 1985

[3] https://www.news18.com/news/politics/since-the-1st-elections-only-0-49-of-independent-candidates-have-managed-to-enter-lok-sabha-2047541.html

[4] https://factly.in/law-commission-india-recommending-independent-candidates-debarred-from-contesting-elections/

[5] Law Commission of India, Government of India, Report No. 255 on Electoral Reforms, 2015

[6] Kuldip Nayyar v. Union of India, (2006) 7 SCC 1.

Case BriefsHigh Courts

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]

Op EdsOP. ED.

Abstract 

Fundamental duties were incorporated in Part IV-A of the Indian Constitution by the 42nd Amendment[1] 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[2] 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.”[3]

Introduction

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[4]. 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.

Background

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”[5], staunch admirers, of which were luminaries like Lokmanya Tilak[6] 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[7] 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[8] coming into force and the majority of which was struck down by 44th Amendment[9] 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[10], and reaffirmed by Supreme Court in Minerva Mills Ltd. v. Union of India.[11]

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[12] and the same is also inspired by Article 59 of the 1977 Soviet Constitution[13] and other Constitutions, Declarations and concepts. Thus, Article 51-A is in accord with the other countries and laws.

Further Developments 

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.”[14] 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[15] was an advisory panel set up to pass its expert comments and suggestions on effectualisation of  fundamental 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 of  fundamental duties amongst the citizens on the lines recommended by Justice Verma Committee.”

86TH AMENDMENT

The duty which was added to the Constitution after 1976, was incorporated vide 86th Amendment Act[16] 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 of  fundamental 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[17]. In Javed v. State of Haryana[18], the Supreme Court held that fundamental rights have to be read with  fundamental 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[19]. This proposition was recognised in Minerva Mills Ltd. v. Union of India[20]

“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.               

(emphasis supplied)

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 for  fundamental 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.[21]

In Mohan Kumar Sighnania v. Union of India[22] , 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[23] & Bandkhal and Surajkund Lakes matter[24], 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 of  fundamental 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 by  Mrs Indira Gandhi took a positive step towards the overall development and progress of the nation by taking the initiative to introduce in the Constitution, ten  fundamental 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[25] 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 the  fundamental duties which only goes to show that the  fundamental 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[26], 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 between  fundamental rights and  fundamental duties, the petitioner in Rangnath Mishra v. Union of India[27] 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 the  fundamental duties;
  • In Dr. Dasarathi v. State of Andhra Pradesh[28], 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.”[29] and Constitutions of other major countries.

The criticism and fallback on  fundamental duties as sufficient means of achieving responsible citizenry has been addressed hereunder:

INADEQUACY

Just as there are two sides to a coin, there are two aspects to the sufficiency of  fundamental duties.  Introduction of the 11  fundamental 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. Assuming  fundamental 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 since  fundamental 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:

Additional Duties 

  • 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[30] 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[31], Azadi Bachao[32] and  Vodafone case[33].
  • 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[34].
  • Duty to keep premises clean: Article 21 has been interpreted by the Supreme Court to include the right to a clean environment[35]. To tackle this issue, Prime Minister  Narendra 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[36].
  • 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:

Hindrances

IMPERFECT OBLIGATION

Imperfect obligations are rights without corresponding duties and duties without corresponding rights. In Minerva Mills Ltd.v. Union of India[37] , 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.”

  (emphasis supplied)

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.

SOCIO-ECONOMIC CHALLENGES

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”[38] ? 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 the  fundamental 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.

AMBIGUITY

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).

CONCLUSION

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

[1] Constitution (42nd Amendment) Act, 1976

[2] (1980) 3 SCC 625

[3] Ibid

[4] Preamble, the Constitution of India

[5] C.K. Allen; Law in Making; Jurisprudential Aspects of Fundamental Duties and their Enforceability: A Study by Prof (Dr.) R.L. Koul and Dr. Meenakshi Koul.

[6] S. Krishnan , ‘Lokmanya Tilak’s Thoughts are Relevant in Today’s Socio-Political Context’.

[7] Swaran Singh Committee Report, (1976) 2 SCC J-45 

[8] Ins. by the Constitution (42nd Amendment) Act, 1976, S.11 (w.e.f 3.1.1977). 

[9] Omitted by the Constitution (44th Amendment) Act, 1978.

[10] (1973) 4 SCC 225  

[11] (1980) 3 SCC 625.  

[12] Universal Declaration of Human Rights  

[13] Soviet Constitution, Article 59(1), 1977.

[14] Justice Verma Committee Report, 1998.

[15] Government of India, Report: National Commission to Review the Working of the Constitution, Vol. II, p. 373 (Ministry of Law, Justice and Company Affairs, 2001).

[16] Ins. by Constitution (86th Amendment) Act, 2002

[17] Durga Das Basu, Introduction to the Constitution of India, 24th Edn., 2020.

[18] (2003) 8 SCC 369

[19] Justice Kurian Joseph, Judge of Supreme Court of India on “My Fundamental Duties under the Constitution of India”.

[20] (1980) 3 SCC 625

[21] Government of India, Report: National Commission to Review the Working of the Constitution, Vol. II, p 373 (Ministry of Law, Justice and Company Affairs, 2001), pp. 388-393.

[22] 1992 Supp. (1) SCC 594

[23]. (1996) 5 SCC 647

[24] M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India, (1997) 3 SCC 715

[25] (2002) 1 SCC 428

[26] (1991) 2 SCC 353

[27] (2003) 7 SCC 133 

[28] 1984 SCC OnLine AP 107 

[29] Article 29(1), Universal Declaration of Human Rights.

[30] 1954 SCC OnLine US SC 33  

[31] McDowell & Co. Ltd. v. CTO, (1985) 3 SCC 230

[32] Union of India v. Azadi Bachao Andolan,  (2004) 10 SCC 1

[33] Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613

[34] Kritika Sharma Sebastian, “Guidelines to Protect Good Samaritans Soon”, The Hindu, Apr. 12, 2015

http://www.thehindu.com/new/cities/bangalore/good-samaritans-law-is-now-on-your-side/article8390403.ece.

[35] Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.

[36] The Protection of Children from Sexual Offences Act, S. 20, 2013.

[37]. (1980) 3 SCC 625.

[38] Indian Constitution, Article 51(j).

Op EdsOP. ED.

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[1] (‘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[2] 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’ [3].

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[4]. 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[5]. 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[6]. At this juncture several doubts were raised as to the representative character of the Constituent Assembly[7].

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[8] 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.


*Author,  Practising in Supreme Court of India

[1] (1973) 4 SCC 225 

[2] Ibid

[3] Austin, The Indian Constitution, Oxford University Press; p. 325

[4] Vide Clause 232 of B.N. Rau’s Draft Constitution

[5] See Article 305, Part XVI, Draft Constitution of India, 1948, available at https://www.constitutionofindia.net/historical_constitutions/draft_constitution_of_india__1948_21st%20February%201948

[6] Austin, The Indian Constitution, Oxford University Press; p. 328

[7] Constituent Assembly of India Debates (Proceedings), Vol. IX (17 September 1949)

[8] Id

COVID 19Hot Off The PressNews

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.

*To access the notification, please click here: NOTIFICATION


Rajasthan High Court

[Standing Order dt. 27-04-2020]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

 

ObituariesOP. ED.

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[1] 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[1] 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[2]. In the Supreme Court, in Aruna Ramachandra Shanbaug[3] 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[4], 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.[5], 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[6]. 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.]

   [1]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

   [2]  Federation of Associations of Maharashtra v. State of Maharashtra, 1994 SCC OnLine Bom 750

   [3]  Aruna Ramachandra Shanbaug v. Union of India, (2011) 15 SCC 480

   [4]  I.R. Coelho v. State of T.N., (2007) 2 SCC 1

   [5]  Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

  [6]  T.R. Andhyarujina, “The Unique Judicial Activism of the Supreme Court of India”, (2014) 130 Law Quarterly Review 53

Op EdsOP. ED.

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)[1], 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.[2] 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”[3].

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.”[4] 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.”[5]

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.[6] 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.[7]

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”[8] and there is “no guarantee that such powers will not be abused in the future”[9].

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.[10] Moreover, even the concept of mala fide would not apply as legislative intentions are out of judicial reach.[11] Further, it is for the petitioner to prove that necessary circumstances could not have existed.[12] 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.[13]

Various other authors support this — “Legislation by ordinances is not extra-constitutional, but improper and undemocratic.”[14] Prof. M.P. Jain agrees with Noorani, saying that “[t]he executive in Britain or the USA enjoys no such power.”[15] 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”[16].

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.

[1]  The Constitution (Thirty-Eighth Amendment) Act, 1975 and the Constitution (Forty-Fourth Amendment) Act, 1978.

[2] 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.

[3]  Constituent Assembly Debates, p. 201

[4]  The Trouble about Ordinances, Romesh Thapar, Economic & Politicial Weekly (13-7-1974).

[5]  Law or Ordinance?, Romesh Thapar, Economic & Political Weekly (23-11-1974).

[6]  Ordinances promulgated in and after 2014 have been considered for this analysis.

[7]  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).

[8]  Introduction to the Constitution of India, Durga Das Basu, Nagpur LexisNexis, (22nd Edn., 2014) p. 207.

[9]  Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[10]  A.K. Roy v. Union of India, (1982) 1 SCC 271; S.K.G. Sugar Ltd. v. State of Bihar, (1974) 4 SCC 827.

[11]  T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198; State of Karnataka v. B.A. Hasanahba, 1998 SCC OnLine Kar 93 : AIR 1998 Kar 210.

[12]  Gyanendra Kumar v. Union of India, 1996 SCC OnLine Del 367 : AIR 1997 Del 58.

[13]  Ordinance Raj, A.G. Noorani, Economic & Political Weekly (12-12-1998).

[14] Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[15]  Indian Constitutional Law, M.P. Jain, Nagpur LexisNexis (6th Edn., 2003) p. 181.

[16]  Supreme Court and Ordinances, A.G. Noorani, Economic & Political Weekly (28-2-1987).

Case BriefsHigh Courts

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

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

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

 

Case BriefsSupreme Court

Supreme Court: Deciding the matter regarding the Court’s power to remit or pardon, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the argument that when a pardon or remission can be given under Article 72 or 161 of the Constitution by the constitutional authority, this Court can exercise the similar power under Article 32 of the Constitution of India is absolutely based on an erroneous premise. It further said that Article 32 of the Constitution can be only invoked when there is violation of any fundamental right or where the Court takes up certain grievance which falls in the realm of public interest litigation.

In the present case, the petitioner convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), had prayed for the issue of writ of mandamus commanding the Government to grant remission to them. It was contended that Chapter XIX of the New Punjab Jail Manual, 1996 lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. However, it was further contended that the constitutional validity of Section 32-A of the NDPS Act and Section 433-A CrPC has been upheld in Dadu v. State of Maharashtra, (2000) 8 SCC 437 and Maru Ram v. Union of India, (1981) 1 SCC 107, respectively, and that the said provision does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution, hence, the denial to grant remission is totally arbitrary.

The Court, hence, held that the constitutional power engrafted under Articles 72 and 161 of the Constitution is different than the statutory power enshrined under Section 433-A CrPC. The petitioners do not have a right to seek remission under the Code because of Section 32A of the NDPS Act. However, they can always seek relief either under Article 71 or 161 of the Constitution, as the case may be, as it is in a different domain. Stating that the Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights, the Court held that the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious. [Tara Singh v. Union of India, 2016 SCC OnLine SC 631, decided on 29.06.2016]