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THE

CONSTITUTION
AT 67

SUPREME COURT OF INDIA


Foreword
On this day, sixty-seven years ago, the people of this great nation gave to themselves a unique
document – the Constitution of India – which was a result of long deliberations and research made by
the eminent members of the Constituent Assembly. The Constitution is a dynamic and living document
embodying a way of life towards the progress of the nation, the society and the individual and that is
why, it has been aptly said:-

“Constitution is not a mere lawyers document, it is a


vehicle of Life, and its spirit is always the spirit of Age.”

Nothing can express the potentiality of the power of an idea than the celebration of the Constitution Day
on the 26th of November each year and the idea gets more fructified when the Bench and the Bar have
a combined celebration. The salubrious purpose is to stand and live by the Constitution. The goal has
its primacy and paramountcy. Last year it was decided that the 26th of November that had witnessed
the participative celebration as the Law Day should be dedicated to the Nation for celebrating the
Constitution Day. It has been done without affecting the Bar’s observance of the Law Day.

The present volume commemorating the Constitution Day reaffirms our faith that the Supreme Court
armed with the Constitution assures that cultural, economic and political India in all its diversities and
differences exists for all Indians. The articles in this volume by Judges of the Supreme Court, senior
advocates and academicians manifest the spectrum of constitutional issues which rapidly changing
India faces in the context of the Supreme Court jurisprudence evolved from case to case since
independence.

A very valuable contribution to this commemorative work encompasses manifold thoughts and
perceptions covering many a range such as The Myth and Reality of Article 14 in the Light of Growing
Inequalities, Creative Role of Supreme Court of India in Enlarging and Protecting Human Rights,
Uniform Civil Code and the Quest for Gender Justice, Interpreting and Shaping the Transformative
Constitution of India, Access to Justice and Legal Services in the Constitutional Framework of India,
The Doctrine of the Invisible Constitution, A Relook at the Basic Structure Doctrine in the Context of
Unenumerated Fundamental Rights, Judicial Perspective of Harmony Between Fundamental Rights
and Directive Principles of State Policies in India for Protecting Democratic Norms, Fragments from
a Manuscript, Anti-Defection Law in India – A Study of Emerging Problems and Issues and Curative
Jurisdiction of the Supreme Court and it also covers Supreme Court on the Constitutional Position of
the President of India, Role of the Judge in a Democracy, Impact of GST Laws on the Federal Structure
of the Indian Constitution and Poverty as a Challenge to Human Rights.

This volume celebrates the freedom of thought and opinion in the conjoint struggle to create an India
of composite culture respecting its diversity, plurality and heritage of faiths and ways of life with justice
for all and prejudice to none under our Constitution. There is no doubt that professionals, academics
and ordinary citizens will find it practically useful and inspirational. The contents of the articles are to
be read and appreciated being wedded to the concept of cultivated reading that embraces catholicity
of approach and a sense of objectivity which should always mirror a possible correlative in the
constitutional framework.

New Delhi, [DIPAK MISRA]

26th November, 2017


3
The Members of the Souvenir Committee:

1. Hon’ble Mr Justice A.K. Sikri Chairman

2. Hon’ble Mr Justice R.F. Nariman Member

3. Hon’ble Mr Justice A.M. Khanwilkar Member

4. Hon’ble Dr Justice D.Y. Chandrachud Member

5. Mr Rupinder Singh Suri


President, Supreme Court Bar Association Member

6. Mr Ajit Kumar Sinha


Vice-President, Supreme Court Bar Association Member

7. Mr Shyam Divan Member


Senior Advocate

8. Mr Rajesh Kumar Goel Secretary


Registrar, Supreme Court of India

Publisher The Supreme Court of India, New Delhi, 110201


Website http://supremecourtofindia.nic.in
Book The Constitution at 67
Designed & Printed by Mittal Enterprises, Delhi (9811340726)
For Office Use Only

COPYRIGHT@2017: THE SUPREME COURT OF INDIA


All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means - electronic, mechanical, photocopying, recording or
otherwise, without the prior permission in writing of the copyright owner.

4
Contents
1. Fundamental Duties in the Indian Constitution 7
– Hon'ble Mr. Justice Kurian Joseph,
Judge, Supreme Court of India

2. Role of the Judge in a Democracy 15


– Hon'ble Mr. Justice A.K. Sikri,
Judge, Supreme Court of India

3. Curative Jurisdiction of Supreme Court 33


–Hon'ble Mr. Justice C.K. Thakker,
Former Judge, Supreme Court of India

4. Poverty as a Challenge to Human Rights 39


– Shri K.K. Venugopal,
Attorney General for India

5. The Myth and Reality of Article 14 in the light of Growing Inequalities 49


– Shri Fali S. Nariman, Senior Advocate

6. Creative Role of Supreme Court of India in Enlarging and Protecting Human Rights. 61
– Shri Soli. J. Sorabjee, Senior Advocate

7. Uniform Civil Code and the quest for Gender Justice 65


– Prof. N.R. Madhava Menon,
Professor, National Law School of India

8. Interpreting and Shaping the Transformative Constitution of India. 73


– Prof. M. P. Singh, Professor,
National Law University

9. Access to Justice and Legal Services in the Constitutional Framework of India. 109
– Prof. (Dr.) Ranbir Singh, Vice Chancellor,
National Law University

10. The Doctrine of the Invisible Constitution: A Relook at the Basic Structure 125
Doctrine in the Context of Unenumerated Fundamental Rights.
– Shri Parag P. Tripathi, Senior Advocate and
– Smt. Neelima Tripathi

11. Impact of GST Laws on the Federal Structure of the Indian Constitution 139
– Shri Arvind P. Datar, Senior Advocate

5
12. Judicial Perspective of Harmony between Fundamental Rights and
Directive Principles of State Policies in India for Protecting Democratic Norms. 147
– Shri Mohan Parasaran, Senior Advocate and
Former Solicitor General of India

13. Fragments from a Manuscript 157


– Shri Shyam Divan, Senior Advocate

14. Anti Defection Law in India, a Study of Emerging Problems and Issues. 179
– Shri Atmaram N.S. Nadkarni,
Additional Solicitor General of India

15. The Supreme Court on the Constitutional Position of the 185


President of India: An Analysis
– Dr. Lokendra Malik, Advocate

16. The Sentinel's Toil 209


– Shri Gopal Sankaranarayanan, Advocate

6
Fundamental Duties in the
Indian Constitution
Justice Kurian Joseph*

Introduction: FUNDAMENTAL DUTIES IN THE INDIAN


CONSTITUTION
The Constitution of India envisages a holistic
approach towards civic life in a democratic • Article 51-A(a) - Duty to abide by the
polity. Certain rights have been guaranteed Constitution and respect its ideals
within the Constitution as Fundamental Rights. and institution, the National Flag and
Additionally, the Constitution incorporates National Anthem.
certain duties called Fundamental Duties.
For the true success of a democracy, it is The first duty assigned to every citizen is to
imperative that citizens assume responsibilities abide by the Constitution and respect its ideals
and discharge their duties in a sincere manner. and institutions, the National Flag and National
The concept of Fundamental Duties is an Anthem. The Constitution, National Flag
attempt to reiterate the fact that the citizens and the National Anthem are symbols of our
have some duties towards the State, the history, sovereignty, unity and pride. The ideals
society and towards each other. of the Constitution, such as justice, equality,
liberty and fraternity, as mentioned in the
The Fundamental Duties were incorporated Preamble, have to be obeyed and practiced by
in the Constitution through the 42nd every citizen in their every day life. If we make
Amendment in 1976. The Constitution of India, an endeavor to respect these ideals then the
as it stands today, contains eleven duties society will become a better place to live in.
which though not justiciable in Court, serve as
a constant reminder to the citizens that while • Article 51-A(b) - Duty to cherish and
the Constitution confers upon them certain follow the noble ideals which inspired
Fundamental Rights, it also requires them to our national struggle for freedom.
observe certain basic norms of good behavior.
In the struggle for freedom, thousands of
* Judge, Supreme Court of India
people sacrificed their lives for the sake of our
7
country. It is our duty to remember the sacrifices does not give any pointers as to whether the
made by our forefathers for the cause of our said duty extends only to situations of external
freedom and to cherish and follow the noble aggression/war or if the citizens can also be
ideals which inspired our freedom. called upon to deal with an armed rebellion and
if so, what should be the gravity of the rebellion
• Article 51-A(c) - Duty to uphold and for the State to call forth people. It is essential
protect the sovereignty, unity and to remember that militarising a large part of the
integrity of India. population without proper checks may itself
pose a danger to the sovereignty and integrity
It is the duty of every citizen of India to protect of the country.
the sovereignty, unity and integrity of India. The
expressions unity and integrity have their place • Article 51-A(e) - Duty to promote
in the Preamble of the Indian Constitution harmony and the spirit of common
as well. As per Article 19 (2), reasonable brotherhood amongst all the people of
restrictions can be placed on freedom of India transcending religion, linguistic
speech and expression in the interest of the or sectional diversities and to renounce
“Sovereignty and Integrity of India.” There are practices derogatory to the dignity of
also statutory provisions (such as provisions women.
in the Indian Penal Code, 1860) to protect the
sovereignty and integrity of India. While unity As mentioned before, the strength of India lies
and integrity are important ideals, they should in its diversity and an attempt must be made to
not be used to impose one particular way of preserve that. However, it is important to treat
living on all citizens. The strength of India lies in all citizens equally irrespective of their language,
its diversity and while striving to achieve unity religion, ethnicity, etc. The Constitution of India
we must keep this diversity in mind. grants equality before law and equal protection
of laws without any consideration to any of the
• Article 51-A(d) - Duty to defend the aforesaid factors.1 The Right to Freedom of
country and render national service Religion is also guaranteed to all the citizens
when called upon to do so. in India.2 The second part of this duty deals
with gender justice and exhorts citizens to
Clause (d) enshrines a Fundamental Duty renounce practices derogatory to women.
entrusted to the common man as indicated Legislations such as The Protection of Women
by the expression “when called upon to do from Domestic Violence Act, 2005, The
so”. The performance of this duty is obviously Protection of Women from Sexual Harassment
contingent upon the citizens being called upon
to defend the country and render national 1 Article 14, Constitution of India.
service. The fundamental duty as it stands 2 Articles 25-28, Constitution of India.

8
at Workplace (Prevention, Prohibition and of our nation. It is unfortunate that there are
Redressal) Act, 2013, recent amendments to instances of vandalizing of monuments and
criminal law are all intended to safeguard the archeological sites, stealing of art treasures
interests of women. In Hiral P. Harsora and for the purposes of smuggling and private
Ors v. Kusum Narottamdas Harsora and Ors3, hoarding. The degradation of monuments
Section 2 (q) of the Protection of Women from of national importance due to the callous
Domestic Violence Act, 2005 was challenged indifference and inaction on the part of the
and it was held by the Supreme Court that the elected governments as well as the citizens
respondent under section 2(q) should not be is also very common. This clause imposes
limited to ‘adult male’ and those two words a positive duty upon every citizen to save
have been removed from the definition clause. and protect our rich and vibrant heritage.
Consequently, the proviso was struck down. In The future generation has at least the same
the scheme of the Act, to have the complete right to enjoy the fruits of our spiritual legacy
household protection as intended by the Act, and to benefit from the same. It therefore
the Court was of the view that the respondent becomes the ardent duty of every citizen to
should include any family member in the shared ensure that these monuments and pieces of
household irrespective of gender. However, art are not in any way damaged, disfigured,
it is essential to point out that the State and scratched, or subjected to vandalism or greed
the Courts can only work in conjunction with of unscrupulous traders and smugglers.
the citizens, it is also the duty of the citizens to
renounce such practices on their own volition • Article 51-A(g) - Duty to protect and
and treat women with the respect and dignity improve the natural environment
that they deserve. including forests, rivers and wildlife,
and to have compassion for living
• Article 51-A(f) - Duty to value and creatures.
preserve the rich heritage of our
composite culture. In ancient India, nature was worshipped
and regarded as sacred. The rate at which
India has witnessed the coming together of environment degradation is taking place is
various cultures, religions, linguistic and social quite alarming and is threatening to wipe out
groups. India has also been the birthplace our very existence. There are rising instances
of major religions. The presence of so many of frequent natural calamities which consume
majestic monuments of great archeological thousands of human lives every year. Under
value- from temples to palaces and stupas the guise of development, we have caused
to mosques reflects the rich past and culture mindless destruction of our natural resources.
The purpose behind Article 51-A (g) is to
3 (2016) 10 SCC 165
remind the citizens of their responsibility
9
towards the environment. Given the way excellence in all spheres of collective
human beings are treating the environment, activity so that the nation constantly
the zeal for conservation of environment has rises to higher levels of endeavor and
to come from within or else we will reach the achievement.
point of no return.
Excellence is a virtue which is the demand
• Article 51-A(h) - Duty to develop of time in all spheres of individual and collective
scientific temper and spirit of inquiry activity. The term ‘excellence’ requires a person
and reform. to undertake the best of the efforts and strive
to continuously improve himself in whatever
The observance of this duty is extremely activity he chooses to pursue. However,
relevant in the Indian context where people excellence is not synonymous with important
practice various superstitious rituals. This duty and high paying jobs. Our society is inter-
seeks to make an appeal to the citizens to dependent and the role of every individual is
discard the outdated ways of thinking. Scientific equally important in all walks of life, regardless
temper includes within its ambit objectivity and of their position in the pecking order.
individuality, open mindedness and humility,
unexacting nature and perseverance. The • Article 51-A(k) - Duty to provide
appeal is essentially to shed the superstitious opportunities for education to children
beliefs or dogmas that have invaded the minds between the age of six and fourteen
of the citizens due to a misconstruction of years.
religion.
The Right to Free and Compulsory Education
• Article 51-A(i) - Duty to Safeguard for children between the age group of 6 to 14,
Property and Abjure Violence. is a fundamental right under Article 21-A. A
corresponding duty was added in the form of
It is extremely unfortunate that in a country Article 51-A(k) upon the parents or guardian
founded on the Gandhian ideal of non violence, of the child to ensure that the child is made
this duty is one of the most breached ones. In to avail the right to education provided by the
recent times, it is not uncommon to hear news State under Article 21-A of the Constitution
about gory violence on an everyday basis. The of India. Thus, the only positive obligation
citizens must strive to follow this duty in letter imposed upon the parents is to ensure that
and spirit, on their own volition. It is high time they support the endeavor of the State, by
that we realize our duty of safeguarding public ensuring that their child is admitted in a school
property and of renouncing all sorts of violence. and not put to work for extra income. The
need for educating our children cannot be
• Article 51-A(j) - Duty to strive towards overemphasized especially because a majority
10
of our population consists of children and provided us with a Constitution which
youth. Education builds the foundation of life provides the citizens the right to vote. Article
and no person in today’s time can hope to live 326 of the Constitution read with Section
a reasonable and decent life without being 62 of the Representation of People’s Act,
educated. 1951 confers the right to vote. Voting is
considered as our civic duty determining
WORKING TOWARDS NEW DUTIES our future and hence the citizens need to
play a part in shaping it. Voting provides
As discussed earlier, the current set of the citizens with an opportunity to benefit
Fundamental Duties in Part IV-A of the the society through their involvement in
Constitution of India were added in the year the democratic process. It has often been
1976. The only Fundamental Duty that noted that the turnout in general elections
was added post the 1976 Constitutional is quite low. This voter apathy should be
Amendment is contained in Article 51A(k) i.e. taken seriously and an attempt should
the duty of every parent or guardian to provide be made to make voting a citizenship
opportunities for education to his child between obligation. The Indian law permits its voters
the age of six and fourteen years. This duty to cast a negative vote by voting for None
was inserted through the 86th Constitutional of the Above(NOTA) and if the voters do not
Amendment in 2002. like any candidate in their Constituency, it
is open to them to vote in favour of NOTA.
Since then, the scope of Fundamental What is important is the expression of the
Rights under Part III of the Constitution has right as it would compel the political parties
seen significant expansion through judicial to take the expectations of the citizens
pronouncements. As a result, an imbalance more seriously.
has been created between the current set
of Fundamental Rights and Duties. With the (ii) Duty to Pay Taxes: The duty to pay taxes
advent of technology, new obligations have springs from providing the State with its
arisen that members of the society owe to means of existence. The State performs
each other and to the country. Along with essential functions like maintenance of
that, certain duties that are essential to any law and order, education, regulation of
democracy need to be reinforced within the trade etc. and its ability to perform these
current context so as to instil a new sense of functions is contingent on the fact that it has
civic responsibility. the finances to do so. All these functions
are paramount for the civic organization of
(i) Duty To Vote: Active participation by society. Without taxes, the very existence
citizens in the election process is the of the State would be in peril. Therefore, the
cornerstone of any democracy. India has duty to pay taxes becomes a salient part of
11
one’s citizenship. The incorporation of the of the bystanders lend a helping hand.
duty to pay taxes as part of Fundamental Accident cases require fastest care and
Duties in the Constitution will shift the onus help can be provided by those close to the
on the taxpayer to pay taxes rather than scene of the accident and that is why Good
the tax department to collect them. This Samaritans need to be empowered. With
reassertion of a citizen’s moral duty to pay the increase in number of accidents, it is
taxes may result in a much more effective important for the State to reognise this as
and robust system of collection. a duty which citizens owe to one another.

(iii) Duty To Keep the Premises Clean: (v) Duty To Afford Opportunities Of Rest,
Prime Minister Narendra Modi’s Swachh Play And Leisure To Children: Article 31
Bharat Mission has received tremendous of the United Nations Convention on the
support from people from all walks of life. Rights of the Child declares that, “State
In M.C. Mehta v.Union of India & Ors.4, the Parties recognise the right of the child to
Supreme Court recognized the need for rest and leisure, to engage in play and
behavioural change and stressed upon recreational activities appropriate to the
the need for awareness. While issuing age of the child and to participate freely in
directions to the Municipalities, it noted cultural life and the arts”. Article 29 states
that: that “the education of the child shall be
directed to…..the development of the
“Children should be taught about the need child’s personality, talents and mental and
for maintaining cleanliness commencing physical abilities to their fullest potential”.
with the cleanliness of the house both The denial of right to play to children
inside and outside, and of the streets in mainly seems to be a result of the shift
which they live. Clean surroundings lead to in the cultural values of our society. The
healthy body and healthy mind.” recognition of the right to play is absent in
Indian households where disproportionate
The most effective mechanism to tackle emphasis is laid on academic activities and
uncleanliness is to sensitize people about the rights of children are sacrificed at the
this duty. Therefore, it is imperative that a altar of academics.
Fundamental Duty to this effect be added to
the Constitution. Right to Play, though trivialized and
misunderstood in our country, is an inalienable
(iv) Duty To Help Accident Victims: Often right of children. In order to ensure compliance
accident victims complain about how none with this avowed objective of our Constitution,
it is necessary to ensure that the enjoyment of
4 (1988) 1 SCC 471
the right to play is made available to children in
12
India. A duty must be added in Chapter IV-A (viii) Duty to Protect whistle-blowers: With
upon the parents to provide such opportunities the coming into force of the Right to
within their means. Information Act, 2005, every citizen has
become a “potential whistle-blower”. While
(vi) Duty to Prevent Civil Wrongs: A the State has a great deal of responsibility
responsible citizenry is actually the back in providing for their protection through
bone of the State. Any violation of law and appropriate legislative instruments, the
any disturbance to public order by disorderly responsibility to protect torchbearers of
conduct is a wrong done to society. It is transparency vests on each one of us.
not enough that a citizen refrains from
committing wrong; he has a duty to see (ix) Duty to support bona fide civil society
that fellow citizens do not indulge in the movements: Citizens have a moral duty
commission of wrongs. Citizens also have a to organise themselves or support citizen
duty to prevent commission of civil wrongs groups so that the gaps in governance left
by taking appropriate action. It is common by the executive can be filled and the rights
to see people breaking the law by littering guaranteed by the Constitution are made
the streets and vandalising public property. available to every citizen. Therefore, it is
The well meaning citizens of the country proposed that there must be an addition to
have a duty to inspire compliance of the law Part IV-A of the Constitution to that effect.
because they can dissuade wrongdoers
from indulging in such activities by arousing
their conscience. This way they can make
the wrongdoers see the ill effects of their CONCLUSION
action.
The chapter on Fundamental Duties was
(vii) Duty to raise voice against injustice: added based on the recognition that in order
Today people seem to have stopped to be successful, a democracy requires active
reacting to atrocities; they neither report participation of the citizens in the process of
crimes nor volunteer to testify in a court. governance through the proper discharge
The duties of a victim or a witness can be of their civic duties. The eleven duties mainly
classified into two main categories, viz. pertain to abiding by the Constitution and
duty to report a crime and duty to testify respecting its ideals, promoting harmony and
in court. The State must also on its part spirit of common brotherhood, development of
work to ensure that the fight to justice does scientific temper, humanism and the spirit of
not become a nightmare for the victim or inquiry and striving for excellence in all spheres
witness. of individual and collective activity. These
duties have an intimate connection with the
13
ideals of justice and fraternity and they must this, it is essential that citizens are conscious
be read in conjunction with the Preamble. The of their responsibilities and the society should
idea behind implementing Fundamental Duties be shaped in such a way that we all show our
of citizens was to serve a useful purpose of utmost respect to the inalienable rights of our
reconciling the claims of individual citizens with fellow citizens.
those of the civil society. In order to achieve

*******

14
Role of the Judge in
a Democracy*
Justice A.K. Sikri**

Introduction: Why This Topic?


of Israel, has written a book titled The Judge
Why to have memorial lectures? in a Democracy. I found that Justice Khanna
is one Indian Judge who can be treated as a
I see the importance of these lectures in two role model for how a Judge needs to acquit
ways. First, we remember and tell the noble himself/herself in a constitutional democracy.
soul that we have not forgotten you. Secondly,
we also tell him that on this occasion we are In any democracy, though governed by the
saying on solemn affirmation that we would rule of law, moments come when people face
endeavour to tread the path which was led by and suffer dark forces of division and State
your wisdom. suppression. In Indian context, we underwent
this period during the Emergency days between
When I was invited to give Justice Hans Raj 1975-1977. It is during this period the liberty
Khanna Memorial Lecture, I treated it as an and freedom of the people were suppressed
honour given to me. At the same time, I was with the oppression exercised by the State
in little dilemma about the topic which I need machinery. As is well-known, numbers of
to choose for this lecture. So much is said and persons were taken into preventive custody.
written about Justice Khanna during his life Spate of Habeas Corpus writ petitions came
time and thereafter. Therefore, the challenge to be filed in various High Courts. These
was to say something new or, at least, in the writ petitions were contested by the State
manner in which his personality has not been with the plea that during the Emergency
projected earlier and, at the same time, it citizens did not enjoy any fundamental rights
should also be befitting his stature and aura. as these rights, including right to life and
While deliberating in my mind on this aspect, it personal liberty enshrined in Article 21, stand
suddenly struck me that Justice Aharon Barak, suspended. Rejecting this contention of
the former Chief Justice of the Supreme Court the State, many High Courts issued the writ

*H.R. Khanna Memorial Lecture, delivered on October 13, 2017 at New Delhi, India
**Judge, Supreme Court of India

15
declaring preventive detention to be bad in law This lone crusader of democracy
and ordering the release of the detenues. The upheld the dignity of the Court during the
matter then reached the Supreme Court and most testing times and has been immortalized
the judgment of the Supreme Court in ADM for this act ever since. The New York Times,
Jabalpur & Ors. v. Shivkant Sukla1 was the on April 30, 1976, came out with an editorial
outcome. Plea of the State was accepted which has become a classic and is cherished
by the Supreme Court by a majority of 4:1. by many. It said:
Lone dissenting voice was that of Justice H.R.
Khanna who proved to be a valiant soul and “If India ever finds its way back to the freedom
embodiment of strength and tenacity. Justice and democracy that were proud hallmarks
Khanna was the lone dissenter. In his dissent, of its first eighteen years as an independent
he stated: ‘what is at stake is the rule of law nation, someone will surely erect a monument
… the question is whether the law speaking to Justice H.R. Khanna of the Supreme Court.
through the authority of the Court shall be It was Justice Khanna who spoke out fearlessly
absolutely silenced and rendered mute…”. He and eloquently for freedom.”
rejected the ruthless formalism of law and its
Kafkaesque outcomes. The Nazi Regime too He may not have had a monument erected
had been strictly legal, he tersely observed, in his honour (notwithstanding the portrait
in response to the argument that detention adorning the Court Room No.2 of the
was legal. On that day, he single-handedly Supreme Court), but more than 41 years after
defended our cherished values and dreams the infamous ADM Jabalpur decision, Justice
from being trammeled by the forces of tyranny. Khanna’s uncompromising integrity and
courage has been rewarded. The Supreme
This sacrifice came at a great cost. Next Court, in its recent landmark judgment in
in line to become the Chief Justice of India, he Justice K.S. Puttaswamy (Retd.) & Anr. v.
was superseded, and he eventually resigned. Union of India & Ors.2 (famously known as
It was not that he did not possess any inkling the Right to Privacy case), set aside the majority
of the repercussion. In his autobiography judgment in ADM Jabalpur. The Nine Judge
Neither Roses Nor Thorns, Justice Khanna Bench finally granted an imprimatur of authority
writes of what he had told his sister – ‘I have to the revered and lauded dissent of Justice
prepared my judgment, which is going to cost Khanna, which has been the shining beacon
me the Chief Justice-ship of India’, he said to through the murkiness of our Democracy.
her. Despite knowing of an adverse outcome, Justice D.Y. Chandrachud observed that:
he did not flinch or waver and remained true to
his oath. “The view taken by Justice Khanna must be
accepted, and accepted in reverence for the

1 (1976) 2 SCC 521 2 (2017) SCC Online SC 996


16
strength of its thoughts and the courage of its two basic roles which judges are supposed
convictions.” to perform in a democracy and these are: (i)
to uphold the Constitution and the rule of law;
Justice R.F. Nariman included Justice and (ii) to bridge the gap between the law and
Khanna’s dissent in one of the three great the society.
dissents of Indian Judiciary.

Therefore, I say that Justice Khanna, an The First Role:


audacious personality, showed courage and
independence in upholding human rights, the Let me advert to the first role, namely,
rule of law and the independence of the judiciary. protecting the Constitution and upholding the
He upheld the Constitutional democracy. This rule of law in a democracy. Here, let us first
continues to inspire and remind generations of understand fundamental of the Constitution.
Judges of their role in a democracy. In the first place, we are talking of democracy
in a constitutional set up, i.e. as provided under
So, what is the role of a Judge in a the scheme of our Constitution. In this sense,
Democracy that Justice Khanna fulfilled? This a constitutional democracy is not merely a
question has perplexed jurists, philosophers formal democracy which is a Government of
and Judges for as long as democracies have majority rule (of, by and for the people), but
existed. It is the question which Justice Khanna a substantive one. Let me explain here the
faced and provided us the answer by his basic feature of this constitutional democracy.
action. No doubt, Justice Khanna has inspired It enshrines values such as the Rule of law,
me to choose this topic. At the same time, I separation of powers, the independence of
am inspired by Justice Aharon Barak, retired judiciary, human rights, political, social and
Chief Justice of the Supreme Court of Israel. economic justice, dignity, equality, peace and
security. Justice Aharon Barak calls these
In the words of Justice Aharon Barak, values ‘the inner morality of a democracy’,
‘each Judge is a distinct world unto himself. ones which make a democracy a substantive
Ideological pluralism and not ideological democracy.
uniformity is the hallmark of judges in a legal
system’. The common thread amongst all the The American jurist, Ronald Dworkin, in
diverse opinions, however, is that every Judge his book A Bill of Rights for Britain, had
has a minimum role and responsibility in a described a true democracy as:
constitutional democracy. This emanates from
the Constitution, the fundamental ethos of a “not just a statistical democracy, in which
democracy and extends beyond mere dispute anything a majority or plurality wants is legitimate
resolution. On that parameter, he delineates for that reason, but communal democracy …
17
where everyone must be allowed to participate and reason based interpretation have been the
in politics as an equal … political decisions principle judiciary deals for this purpose and
must treat everyone with equal concern and for advancing the precepts of rule of law in a
respect. Each individual must be guaranteed common law system.
fundamental civil and political rights which no
combination of other citizens can take away, Rule of law is the basic feature of our
no matter how numerous they are or how Constitution. In that sense, common law
much they despise his/her race or morals or jurisprudence is imbibed in our Constitution,
way of life.” though impliedly.

The values of a constitutional democracy Like the common law, the Constitution
are protected by the Constitution, a formal ensured separation of powers. And most
document which enjoys a normative uncommonly it relied on the Judge to ensure
supremacy over the general law of the land that all power in India delivered, in letter and
by defining the roles and powers of the State. spirit, the kind of India that the Constitution
The three wings of the State are supposed mandated. Power of judicial review of
to act within the domain prescribed by the legislative as well as executive actions makes
Constitution. It also specifically limits their the judiciary final arbiter. From the year
interference with individual rights which are 1950 onwards, the Judge, especially in the
enshrined as fundamental rights in Part III of the constitutional courts, became the centre piece
Constitution. Our Constitution also recognizes of the Indian State not only as the testing
ascendency to the substantive values of the point of Parliamentary authority and Executive
democracy over its formal rules and acts as a actions, but also the agency to ensure that
counter-balance to majoritarianism. institutions delivered justice, political, economic
and social, to all Indians. The Indian judiciary
Let me also explain the significance of was the common law guardian armed with
common law for advancing and realizing the the power of judicial review to make it function
goals set out by the Constitution. We have according to constitutional ethos, morality and
adopted common law system in this country, values to ensure constitutional fraternity. The
which of course is given to us by the Britishers. Fundamental Rights Chapter empowered it
What is significant about common law is that to ‘enforce’ equality and reasonableness as
it indelibly marks our constitutional system of spelt out in it. The Directive Principles Chapter
parliamentary democracy. Its central pillar is informed it about the reasonable Indian
the rule of law. Its guardians are the Judges. society as a fundamental principle of India’s
They have preserved and protected this pillar governance, of which the judiciary constituted
through consistent renewal to meet the needs a critical part.
of time and circumstance. Evidence based fact
18
This very broadly described scheme of the This makes the impartial independent Judge
Constitution brings out one distinctive feature. the corner stone of the constitutional edifice. In
No doubt, the principle of separation of powers his inaugural address at the Bangalore Judicial
is a back bone of the constitutional system. It Colloquium in the year 1988, the late Chief
ensures that the power is not concentrated in Justice of India, P.N. Bhagwati, underlined
the hands of any one Government branches this by stating, inter alia: ‘The Bill of Rights
and that they operate independently. The can at best only enumerate the broad and
three branches of the Government, namely, general statements of human rights. But to
Legislature, Executive and the Judiciary, play an positivise them, to spell out their contours and
equally important role in the governance of the parameters, to narrow down their limitations
country and there are checks and balances as and exceptions and to expand their reach
well. At the same time, insofar as the Judiciary and significance by evolving component rights
is concerned, not only its independence is out of them while deciding particular cases,
ensured (which again is treated as inalienable is a task which the judicial mechanism is best
basic feature of the Constitution), it is also given suited to perform, provided of course the
power of judicial review. This power extends to judges are fiercely independent and have the
administrative/executive as well as legislative right attitudinal approaches.’ In a globalised
function. Thus, any act of the executive is world there is a global understanding that the
amenable to challenge and it is the Judiciary role of a Judge in a democracy is meaningful
which is to ultimately decide as to whether only if the Judge is independent and impartial.
the said executive act was within the domain Accordingly, the 1997 Beijing Principles on the
of the Executive. Likewise, the validity of any Independence of the Judiciary in the Law Asia
law made by the Legislature can be tested by Region summarised the role of Judge in Article
the Judiciary in exercise of its rights of judicial 10 in terms of the following objectives:
review and to find out that the particular statute
was within its powers (and not ultra vires) and (a) To ensure that all persons are able to live
also that it did not infringe any provision of the securely under the rule of law;
Constitution, including fundamental rights. In
that sense, Judiciary becomes the final arbiter (b) to promote, within the proper limits of the
when it comes to testing the acts of the other judicial function, the observance and the
two pillars of the State, namely, the Legislature attainment of human rights; and
and the Executive. Enforcement of laws is the
function assigned to the Judiciary and it is the (c) to administer the law impartially among
Judiciary which has to ultimately determine persons and between persons and the
as to what a particular law is, by interpretative State.
process.
When we keep in mind the aforesaid pivotal
19
role of the Judiciary, it becomes apparent that be denied by describing fundamental rights as
the major task of the Judge is to protect the natural rights or human rights, yet the ‘basic
Constitution and rule of law, and thereby the dignity of man does not depend upon the
democracy itself. codification of fundamental rights, nor is such
codification a prerequisite for a dignified way
of living.’ The right to property was not part
Protecting The Constitution
of the basic structure of the Constitution. The
Thus, first role is that of protecting the second he achieved by declaring that there
very Constitution under which a Judge has were no implied limitations on the power of
been appointed. How this is achieved? This amendment.
part was performed by the majority Judges
who decided the case in His Holiness In a telling passage of Judge Learned Hand
Kesavananda Bharati Sripadagalvaru v. in The Contribution of an Independent
State of Kerala & Anr.3, when they held that Judiciary to Civilization, he indicated the
the Parliament, representing the sovereign limits of the judicial role, by stating inter alia:
will of the people, could not use its amending ‘...but this much I think I do know - - that a
power to alter the basic structure or framework society so riven that the spirit of moderation is
of the Constitution. Above all, it could not gone, no court can save; that a society where
use its amending power to shut out judicial that spirit flourishes, no court need save; that
review for finding whether a statute enacted in a society which evades its responsibility by
by a Legislature is in respect of the subject for thrusting upon the courts the nurture of that
which judicial review has been excluded. In spirit, that spirit in the end will perish.’ Five
this sense, judiciary protects the Constitution years later in 1978 the 44th Constitution
by striking down unconstitutional constitutional Amendment deleted the right to property from
amendment, when it is found to be offending the Article19 of the Constitution.
basic feature of the Constitution. What are the
parameters that a Judge must take cognizance A critical test of the judicial role in preserving
of in deciding the width, scope and span of the essence of the Constitution by going
the power to amend the Constitution. Justice beyond it came up in ADM Jabalpur’s case.
H.R.Khanna used a two pronged approach. Justice Khanna’s voice rang out loud and clear
First, how to protect the fundamental rights concerning judicial review even when Article
in the context of the unquestionable need for 21 has been suspended during an Emergency.
public welfare, and second, how to preserve In a lonely struggle as part of a five Judge
the right of the future generation to seek their Bench, he declared: ‘I am unable to subscribe
own destiny as they may like to see it. The first to the view that when right to enforce the
he achieved by holding that while the power right under Article 21 is suspended, the result
of amendment of the Constitution could not would be that there would be no remedy

3 (1973) 4 SCC 225


20
against deprivation of a person’s life or liberty it is the duty of the Supreme Court to interpret
by the State even though such deprivation is it regardless of the fact that the answer to the
without the authority of law or even in flagrant question would have a political effect.
violation of the provisions of law. The right not
to be deprived of one’s life or liberty without Again there was the brooding presence
the authority of law was not the creation of of Justice Khanna from the Kesavananda
the Constitution. Such right existed before Bharati’s case ‘that all constitutional
the Constitution came into force. The fact interpretations have political consequences
that the framers of the Constitution made an should not obliterate the fact that the
aspect of such right as part of the fundamental decision has to be arrived at in the calm and
rights did not have the effect of exterminating dispassionate atmosphere of the court room,
the independent identity of such right and of that judges in order to give legitimacy to their
making Article 21 to be the sole repository decision have to keep aloof from the din and
of that right . . . Recognition as fundamental controversy of politics and that the fluctuating
right of one aspect of the pre-constitutional fortunes of rival political parties can have for
right cannot have the effect of making thins them only academic interest. Their primary
less favorable so far as the sanctity of life and duty is to uphold the Constitution and the laws
personal liberty is concerned compared to the without fear or favour and in doing so, they
position if an aspect of such right had not been cannot allow any political ideology or economic
recognised as a fundamental right; because of theory, which may have caught their fancy, to
the vulnerability of fundamental right, accruing colour their decision.’
from Article 359.’
The protection of constitutional democracy
Two years later, in 1978, the 44th Constitution necessitates an independent judiciary that
Amendment solved the problem for good by protects not only its own independence but
declaring that Article 21, along with Article 20, also the base of a parliamentary democracy
would remain unaffected by the Presidential - - free and fair elections. In People’s Union
Order under Article 359. for Civil Liberties v. Union of India (NOTA
Case), the Supreme Court developed the
The role of the Judge on political questions already established concept of democracy as
was crystallised in the case of Minerva Mills a basic feature of the Constitution to hold that
Ltd. & Ors. v. Union of India & Ors.4 by a free and fair elections are the necessary means
five Judge Bench. The Court would decline for ensuring this basic feature. It declared:
to entertain a controversy which is political in “Free and fair election is a basic structure of the
character. Pure political questions are outside Constitution and necessarily includes within its
its domain. However, where the question ambit the right of an elector to cast his vote
related to the interpretation of the Constitution, without fear of reprisal, duress or coercion.

4 (1980) 2 SCC 591


21
Protection of elector’s identity and affording the right to know declarations in State of U.P.
secrecy is, therefore, integral to free and fair vs Raj Narain & Ors.8, the judicial role in a
elections and an arbitrary distinction between democracy based on free and fair elections
the voter who casts his vote and the voter who was further enhanced by declaring that in a
does not cast his vote is violative of Article nation wedded to republican and democratic
14. Secrecy is required to be maintained for form of government, where election of an MP
both category of person.” Further, “Giving or an MLA is of the utmost importance for
right to a voter not to vote for any candidate governance of the country, voters have a right
while protecting his right of secrecy is to know relevant particulars of their candidates.
extremely important in a democracy. Such Accordingly, Article 324 is a reservoir of power
an option gives the voter the right to express to ensure free and fair elections even in the
his disapproval with the kind of candidates absence of a law by Parliament. Voters had
that are being put up by the political parties. a right to know the criminal antecedents, the
In Kihoto Hollohan v. Zachillhu & Ors.5, educational qualification and the assets and
concerning the validity of the Xth Schedule of liabilities of the candidate.
the Constitution the Court held: “Democracy is
a part of the basic structure of our Constitution I am deliberately eschewing the
and rule of law and free and fair elections are discussion on the development of human rights
basic features of democracy. The judiciary jurisprudence and the manner in which, through
constantly tried to purify the electoral process the method of purposive interpretation of legal
to protect this basic feature. In Common text as well as bold and expansive interpretation
Cause (A registered society) v. Union of of the fundamental rights, particularly, Articles
India & Ors.6 while dealing with the issue of 14, 19 and 21 of the Constitution. The Courts
money power in elections, the Supreme Court have liberally interpreted the concept of equality
held that the Election Commission has power as well as the meaning of the words ‘life’, ‘liberty’
under Art 324 to ask the candidates about the and ‘law’ in Article 21. I have avoided discussion
expenditure incurred by them and their political on this aspect only because of the reason that
party for ensuring the purity of elections , which this itself would consume substantial time and
is fundamental to democracy. In 1998, Vineet we will deviate from the fulcrum of the topic.
Narain & Ors. v. Union of India & Anr.7, the However, some of the judgments which have
court spelt out its obligation under Article 32 to social impact would be referred to by me while
protect and enhance fundamental rights even discussing the second function of the Judge,
in the absence of legislation by Parliament, viz., bridging the gap between the law and the
as emanating from Art.32 and the Beijing society.
Statement of Principles of Independence of
the Judiciary in LAWASIA region. Continuing With this, I advert to the aforesaid

5 1992 Supp. (2) SSC 651 second function.


6 (1992) 2 SSC 752
8 (1975) 4 SSC 428
7 (1998) 1 SSC 226
22
The Second Role:
dynamism of life itself, and it should adapt
Relationship between Law and Society itself to the constant process of transformation
in a Democracy which characterizes all living organisms. Law is
a fact of transformation and growth of human
In order to describe the second role, it is society, and it is the Judiciary that ensures that
necessary to first understand the relationship this process takes place in an orderly, non-
between the law and the society. The law sets violent, and peaceful fashion, while at the same
down the legal norms and thereby controls time contributing towards greater justice.
and governs the behaviour of the society. At
the same time, there are certain ethical and How a judge, in a democratic society,
moral norms which the society lays down for performs the role of bridging the gap between
itself from time to time. Without going into the law and society? It is done in two ways:
discussion insofar as connect between the law
and morality is concerned, suffice is to say that (I) Interpretative Process
in many areas there is an overlap between the
law and the morality. Many laws are influenced One way is by interpretative process, i.e. by
by moral and ethical values, thereby converting giving purposive interpretation to the statutes.
those moral norms into legal norms and, in the No doubt, the Legislature makes the law,
process, providing consequences for violating however, while enforcing that law by applying
these norms. In this context, there has always the same in a given case; it is the Judge who
been a debate as to whether societal norms states, by interpretative process, what actually
influence the law making or it is the law, the law is. It is, therefore, a myth that a Judge
prescription thereof, which leads to change merely states the law and does not create it.
in the behavioural norms in the society. Short The reality is that, while interpreting a statute
answer would be that at times it is the society and declaring what the Legislature meant
which influences a particular law making and thereby, Judge is the final arbiter in deciding
at times it is the law which changes the society. as to what law is. So, what is interpretation of
In this process, in exceptional circumstances, law? It means the extraction of legal meaning
judges act as catalyst, though that is not from semantic meaning, the translation of
their normal function. This happens while “human” language into “legal” language.
accomplishing this second role of bridging the An interpretation system must resolve the
gap between the law and the society. relationship between text and context, words
and its spirit.
In a modern and democratic society, the
objective of the rule of law should not be simply In both constitutional and statutory
to maintain peace in a frozen or paralyzed interpretation, a judge must sometimes
state. Rather, the rule of law should have the exercise discretion in determining the proper
23
relationship between the subjective and The Supreme Court and High Court of our
objective aspects of the law. A Constitutional country have a rich tradition of interpreting the
interpretation is however, very different from Constitution and upholding its values. The laws
a statutory one. To quote Justice Dickson are often interpreted to incorporate principles
of Supreme Court of Canada, who rightly of human rights, democracy, social justice and
enunciated the difference: equality.

“The task of expounding a Constitution is In State of Karnataka & Anr. v. Shri


crucially different from that of construing a Ranganatha Reddy & Anr.9, the Court
statute. A statute defines present rights and speaking through Justice Krishna Iyer observed:
obligations. It is easily enacted and as easily
repealed. A Constitution, by contrast, is drafted “The social philosophy of the constitution
with an eye to the future. Its function is to provide shapes creative judicial vision and orientation.
a continuing framework for the legitimate Our nation has, as its dynamic doctrine,
exercise of governmental powers and, when economic democracy sans which political
joined by a Bill or Charter of Rights, for the democracy is chimerical. We say so because
unremitting protection of individual rights and our Constitution, in Parts III and IV and
liberties. Once enacted its provisions cannot be elsewhere, ensouls such a value system, and
easily repealed or amended. It must, therefore, the debate in this case puts precisely this soul in
be capable of growth and development over peril…. Our thesis is that the dialectics of social
time to meet new social, political and historical justice should not be missed if the synthesis of
realities often unimagined by its framers. The Parts III and Part IV is to influence State action
judiciary is the guardian of the Constitution and and court pronouncements. Constitutional
must, in interpreting its provisions, bear these problems cannot be studied in a sociocultural
considerations in mind” vacuum, since socio-cultural changes are the
source of the new values, and sloughing off
The words of Holmes while dealing with the old legal thought is part of the process the
U.S. Constitution said: new equity-loaded legality. A Judge is a social
scientist in his role as constitutional invigilator
“The provisions of the Constitution are and fails functionally if he forgets this dimension
not mathematical formulas having their I his complex duties.”
essence in their form; they are organic living
institutions transplanted from English soil. In Dattatraya Govind Mahajan & Ors. v.
Their significance is vital not formal; it is to be State of Maharashtra & Anr.10 he observed;
gathered not simply by taking the words and a
dictionary, but by considering their origin and “Our Constitution is a tryst with destiny,
the line of their growth.” preamble with lucent solemnity in the words
9 (1977) 4 SCC 471
24 10 (1977) 2 SCC 548
‘Justice- Social, economic and political.’ enough, and it fails to adapt to the new reality.
The three great branches of Government, as A gap may be formed between law and
creatures of the Constitution, must remember society. It is this gap that judges seek to fill in
this promise in their fundamental role and forget the form of interpretation and Judicial Activism.
it at their peril, for to do so will be a betrayal of The judge may give a statute a new meaning,
chose high values and goals which this nation a dynamic meaning, that seeks to bridge the
set for itself in its objective Resolution and gap between law and life’s changing reality
whose elaborate summation appears in Part without changing the statute itself. The statute
IV of the Paramount Parchment. The history remains as it was, but its meaning changes,
of our country’s struggle for independence because the court has given it a new meaning
was the story of a battle between the forces of that suits new social needs.
socio-economic exploitation and the masses
of deprived people of varying degrees and The attempts of the Courts to bridge the
the Constitution sets the new sights of the gap between provisions of existing law and
nation… Once we grasp the dharma of the the requirements of justice, is the occasion for
Constitution, the new orientation of the karma the development of new dimensions of justice
of adjudication becomes clear. Our founding by way of evolving juristic principles within the
fathers, aware of our social realities, forged framework of law for doing complete justice
our fighting faith and integrating justice in its according to the current needs of the society.
social, economic and political aspects. While It is the quest for justice in the process of
contemplating the meaning of the Articles of administration of justice which occasions the
the Organic Law, the Supreme Court shall not evaluation of the “New Dimensions of Justice”,
disown Social Justice” the phrase used by Justice J.S. Verma, former
Chief Justice of India. The new dimension is
Thus, the role of a judge today is charged actually not really a new dimension. It only
with the job of bridging the gap between law seeks first to bridge the gaps in existing laws,
and society. The role of a judge today is to and then it fulfills the needs of the society by
understand the purpose of law in society and evolving juristic principles within the framework
to help the law achieve its purpose. In most of law and with the objective of doing complete
cases, if not all, a change in the law is the result justice.
of a change in social reality.
As I understand, such cases, where gap
As Barak puts it, the legal norm is flexible between the law and the society can be
enough to reflect the change in reality naturally, bridged, with the objective of doing complete
without the need to change the norm and justice, through interpretative process, may fall
without creating a rift between law and reality. in two categories:
Often however, the legal norm is not flexible
25
(a) Where there is a clear recognition of Another example is the recent judgment of
a right in the law and the society also the Supreme Court in Independent Thought
accepts such a right. Still it is found v. Union of India & Anr.12 wherein sex with a
that in reality that particular class which minor (even when she is a wife) is treated as
is given the right in law is not able to rape, after finding dichotomy in law insofar as
enjoy the same and is deprived thereof. child marriages are concerned.
The judge in such a case enforces the
right and bridges the gap. Examples Likewise, it is by purposive interpretation
in this category would be the cases of that rights of destitute women, persons with
child labour, bonded labour, trafficking, disability and children have been expanded.
etc.
In 2013, the Supreme Court in Badshah
(b) In second category, those cases would v. Urmila Badshah Godse & Anr.13 while
fall where the society recognises or recognizing the duty of a Judge to bridge the
accepts a particular right and there gap between law and society, and the need to
is a legal norm as well. However, give a purposive interpretation to the provisions
having regard to the fact situation, by of Section 125, Cr.P.C.  stated “While dealing
applying the technique of purposive with the application of destitute wife or hapless
interpretation, the scope of the right children or parents under this provision, the
is widened thereby achieving the Court is dealing with the marginalized sections
purpose of justice and bridging the of the society. The purpose is to achieve “social
gap between the law and the society. justice” which is the Constitutional vision,
The Supreme Court has done so by enshrined in the Preamble of the Constitution
invoking its powers under Article 142 of of India. Preamble to the Constitution of
the Constitution. For example, passing India clearly signals that we have chosen the
orders of termination of pregnancy of a democratic path under rule of law to achieve
raped minor girl even when pregnancy the goal of securing for all its citizens, justice,
is for more than twenty weeks, which is liberty, equality and fraternity. It specifically
the limit prescribed under the Medical highlights achieving their social justice.
Termination of Pregnancy Act, 1971, Therefore, it becomes the bounden duty of
after verifying from medical experts that the Courts to advance the cause of the social
such termination would not endanger justice. While giving interpretation to a particular
the life of the pregnant women/girl11. provision, the Court is supposed to bridge the

11 Though Section 3 of the Medical Termination of girl and also in larger public interest, the powers are
Pregnancy Act, 1971 prescribes the limitation of twenty exercised by the superior courts making it a classical
weeks beyond which the termination is impermissible, case of bridging the gap between the law and the
this provision has become outdated having regard to society.
the advancement in medical science which ensures
safe termination of pregnancy even after it is more 12 Writ Petition (C) No. 382 of 2013, decided on
than twenty weeks old. In a particular case where October 11, 2017.
termination is in the interest of the pregnant women/ 13 (2014) 1 SCC 188
26
gap between the law and society.” Likewise, Government of Asian and Pacific Countries
awarding a compensation of Rs.10 lakhs to a that was held from 1-12-1992 to 5-12-1992
disabled person, who was deboarded from a and in order to convert the resolutions adopted
plane by an airline, the Court observed: therein into reality, the Indian Parliament also
passed the enactment i.e. the 1995 Act.
“41. Earlier the traditional approaches to
disability have depicted it as health and welfare 43. All these rights conferred upon such
issue, to be addressed through care provided persons send an eloquent message that
to persons with disabilities, from a charitable there is no question of sympathising with
point of view. The disabled persons are viewed such persons and extending them medical
as abnormal, deserving of pity and care, and or other help. What is to be borne in mind
not as individuals who are entitled to enjoy the is that they are also human beings and they
same opportunities to live a full and satisfying have to grow as normal persons and are to
life as other members of society. This resulted be extended all facilities in this behalf. The
in marginalising the disabled persons and their subject of the rights of persons with disabilities
exclusion both from the mainstream of the should be approached from human rights
society and enjoyment of their fundamental perspective, which recognised that persons
rights and freedoms. Disability tends to with disabilities were entitled to enjoy the full
be couched within a medical and welfare range of internationally guaranteed rights
framework, identifying people with disabilities and freedoms without discrimination on the
as ill, different from their non-disabled peers, ground of disability. This creates an obligation
and in need of care. Because the emphasis on the part of the State to take positive
is on the medical needs of people with measures to ensure that in reality persons
disabilities, there is a corresponding neglect of with disabilities get enabled to exercise those
their wider social needs, which has resulted in rights. There should be insistence on the full
severe isolation for people with disabilities and measure of general human rights guarantees
their families. in the case of persons with disabilities, as
well as developing specific instruments that
42. However, the nations have come a refine and give detailed contextual content of
long way from that stage. Real awareness those general guarantees. There should be a
has dawned on the society at large that the full recognition of the fact that persons with
problems of differently-abled are to be viewed disability were integral part of the community,
from human rights perspective. This thinking equal in dignity and entitled to enjoy the same
is reflected in two major declarations on the human rights and freedoms as others. It is a
disability adopted by the General Assembly sad commentary that this perception has not
of the United Nations on 20-12-1971 and sunk in the mind and souls of those who are
thereafter in the year 1975. The position not concerned with the enforcement of these
was reiterated in the Beijing Conclave by the rights. The persons suffering from mental or
27
physical disability experience and encounter imbalance were not to result in miscarriage
nonpareil form of discrimination. They are not of justice. This result is achieved by what we
looked down by people. However, they are not call social context judging or social justice
accepted in the mainstream either even when adjudication.”
people sympathise with them. Most common,
their lives are handicapped by social, cultural Courts in India have adverted to this social
and attitudinal barriers which hamper their full context adjudication technique, by drifting
participation and enjoyment of equal rights from strict adversarial approach for dispensing
and opportunities. This is the worst form of equal justice.
discrimination which the disabled feel as their
grievance is that others do not understand (II) Law Creating Process
them.”
By interpretative process the judge is
The approach adopted in aforesaid cases required to fill the gap. In this hue, the judge
in order to advance the cause of justice, and decides what the law is and may lay down a
in particular, to impart justice to the weaker new norm as well. In that sense, the judge may
and marginalized section of the society, is ‘create’ law. However, in this category I may
also known as, “social justice adjudication” or refer to those cases where the Supreme Court
“social context adjudication”. Professor N.R. has, in fact, assumed the role of Legislature in
Madhava Menon has eloquently assigned creating the law while enforcing the rights of
following meaning to this manner of judging: a particular class of persons, thereby bridging
the gap between the law and the society. It
“It is therefore, respectfully submitted may be clarified that the discussion is confined
that social context judging” is essentially to human rights aspect only.
the application of equality jurisprudence as
evolved by Parliament and the Supreme Court A classical example where the Court
in myriad situations presented before courts endeavored to bridge this gap between
where unequal parties are pitted in adversarial the law and the society is the judgment in
proceedings and where courts are called Vishaka & Ors. v. State of Rajasthan &
upon to dispense equal justice. Apart from Ors.14 where Court dealt with the menace of
the socio-economic inequalities accentuating sexual harassment of women at workplace.
the disabilities of the poor in an unequal fight, Taking aid of the International Convention
the adversarial process itself operates to the (CEDAW) to which India is a signatory, the
disadvantage of the weaker party. In such a Court stepped in even when there was no law
situation, the judge has to be not only sensitive to tackle the aforesaid problem and laid down
to the inequalities of parties involved but also various guidelines with the direction that these
positively inclined to the weaker party if the guidelines would prevail till the Parliament steps
14 (1997) 6 SCC 241
28
in and enacts a law. It is a matter of record that of the people and to give opportunities to every
the Parliament has passed the law, albeit, after person to develop his/her personality.
16 years from the said judgment, in the year
2003 by enacting the Sexual Harassment of [...]
Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. By recognizing TGs as third gender, this
Court is not only upholding the rule of law
Another case which needs to be highlighted but also advancing justice to the class, so
is Aruna Ramachandra Shanbaug v. Union far deprived of their legitimate natural and
of India & Ors.15 dealing with the subject constitutional rights. It is, therefore, the only
of passive euthanasia. Here again, there just solution which ensures justice not only
was no statutory framework to deal with this to TGs but also justice to the society as well.
important facet of human dignity. Again, after Social justice does not mean equality before
extensively discussing the law in other nations/ law in papers but to translate the spirit of
jurisprudence and referring to earlier judgment the Constitution, enshrined in the Preamble,
in Gian Kaur v. State of Punjab16, the Court the Fundamental Rights and the Directive
laid down the guidelines which are to be Principles of State Policy into action, whose
governed till the law is made by the Legislature. arms are long enough to bring within its reach
We may also refer to the NALSA judgment and embrace this right of recognition to the
wherein rights of transgender as third sex have TGs which legitimately belongs to them.”
been recognised.
D.K. Basu v. State of West Bengal18 is
Likewise, in the National Legal Services another example where the Supreme Court laid
Authority v. Union of India & Ors.17, the down specific guidelines which are required to
Supreme Court had observed that be followed while making arrest.

“The basic principle of the dignity and BALANCING JUDICIAL RESTRAINT


freedom of the individual is common AND ACTIVISM – A NOTE OF CAUTION
to all nations, particularly those having FOR THE FUTURE
democratic set up. Democracy requires us
to respect and develop the free spirit of human Let me touch upon the aspect of judicial
being which is responsible for all progress in activism, at this stage. Some of the judgments
human history. Democracy is also a method by which I have mentioned above clearly reveal
which we attempt to raise the living standard that judges have ‘created’ law thereby.
However, I have chosen those judgments
15 (2011) 4 SCC 454
16 (1996) 2 SCC 648 where the Supreme Court, by doing so, not
17 (2014) 5 SCC 438
18 (1997) 1 SCC 416
29
only tried to bridge the gap between the law restraint must relate to how well they realize
and the society but ensured that human right the aforesaid twin judicial roles. Against this
based on human dignity to a particular class background, he defines judicial activism as
becomes a reality. It is for this reason those under:
judgments have always been commended by
one and all for their scholarship, and thereby “judicial activism is the judicial tendency –
advancing the rule of law. At the same time, conscious or unconscious – to achieve the
there are many other judgments, particularly proper balance between conflicting social
those touching upon the policy matters or the values (such as individual rights against the
governance etc. which are criticised on the needs of the collective, the liberty of one
ground that by entering into the said arena person against that of another the authority
the courts have trampled into the domain the authority of one branch of government
that belonged to either the legislature or the against another) through change in the
executive and, therefore, violated the principle existing law (invalidating an unconstitutional
of separation of powers. It can be said that at statute i8nvalidating secondary legislation that
times it may have happened. However, I am conflicts with a statute, reversing a judicial
not touching that particular area in the present precedent) or through creating new law that
speech, which revolves around “rights issues” did not previously exist (through interpreting the
and the need for a judge to show “activism” in constitution or legislation, through developing
guaranteeing these rights. the common law).”

At the same time, it has to be kept in mind In contrast, he defines ‘self restraint’ as
that judicial activism and judicial overreach under:
have different connotations. According to me,
the concept of judicial activism is to be seen as “It is the judicial tendency – conscious or
judicial pragmatism, i.e. adopting a pragmatic unconscious – to achieve the proper balance
approach to a particular issue, but at the same between conflicting social values by preserving
time confining this within the boundaries of law. existing law rather than creating new law. It
Here the distinction is to be made between finds expression in a judge’s reluctance to
judicial activism and judicial restraint. There are invalidate a legal policy that was determined
various jurisprudential yardsticks propounded in the past.”
in this behalf.
Judicial activism, therefore, would not mean
However, in the context of today’s topic, I changing the law or creating new law. An
would like to borrow and adopt what Aharon activist judge tends to develop new means,
Barak defines as judicial activism or judicial including new systems of interpretation, in
restraint. According to him, activism and self order to play an activist role. However, any
30
development of new judicial means has to I would like to end by quoting him from his
be legitimate. Ultimate aim of the judge, in book Making of India’s Constitution, which is a
performing the second role, is to adopt justice constant reminder to the people of this nation
oriented approach. After all, judges of the of their duty. He said:
superior judiciary are known as ‘justices’. The
Courts are called ‘temples of justice’. This “If the Indian constitution is our heritage
itself underlines the twin role which the judge is bequeathed to us by our founding fathers, no
supposed to perform in a democracy. less are we, the people of India, the trustees and
custodians of the values which pulsate within
We, as judges, have a North Star that its provisions! A constitution is not a parchment
guides us: the fundamental values and of paper, it is a way of life and has to be lived
principles of constitutional democracy. Justice up to. Eternal vigilance is the price of liberty
Khanna embodied the courage to dissent and and in the final analysis, its only keepers are the
it will always remain a treasured value in a people. Imbecility of men, history teaches us,
constitutional democracy. always invites the impudence of power.”

*******

31
32
Curative Jurisdiction of
Supreme Court
Justice C.K. Thakker*

JURISDICTION POWER TO REVIEW JUDGMENT


OF SUPREME COURT
The Supreme Court of India is the highest Article 137 of the Constitution expressly
court of the country established under provides that subject to the provisions of any
the Constitution of India (Article 124). law made by Parliament or any rules made
The Constitution confers on the Supreme under Article 145, it has power to review any
Court original jurisdiction (Articles 32, 131), judgment pronounced or order made by it.
appellate jurisdiction (Articles 132, 133, 134),
discretionary jurisdiction to grant special leave Stated simply “review” means “to reconsider”,
to appeal (Article 136), advisory jurisdiction “to look again”, “to re-look” or “to re-examine”
(Article 143), plenary power for doing complete the case. It is thus a judicial re-examination of
justice between the parties (Article 142), power the case by the same court and by the same
to withdraw and/or transfer any case (Article judge. It is also an exception to general rule
139-A), etc. Article 141 enacts that the law that once a judgment is pronounced or order
declared by the Supreme Court shall be is made, the court becomes functus officio
binding on all courts within the territory of India. (ceases to have control over the matter).
Article 144 states that all authorities, civil and The remedy has a remarkable parity to a
judicial, in the territory of India shall act in aid writ of error. The basic philosophy inherent
of the Supreme Court. The Supreme Court is a in the recognition of the doctrine of review
Court of Record and possesses all powers of a is acceptance of human fallibility. If there is
Court of Record including power to punish for an error due to human failing, it cannot be
its contempt (Article 129). permitted to perpetuate and to defeat justice.
Such mistakes/errors must be corrected to
prevent miscarriage of justice. Justice is above
all. It is a virtue which transcends all barriers.
*Former Judge, Supreme Court of India The law must bend before justice.1

33
ASHOK HURRA vs. RUPA ASHOK HURRA vs.
RUPA BIPIN ZAVERI2 ASHOK HURRA3
In this case, a joint petition for divorce was filed Rupa Ashok then challenged the said decision
on 30.06.1983 by husband and wife seeking in Ashok Hurra by invoking original jurisdiction
consent divorce under Section 13-B of the of the Supreme Court under Article 32 of the
Hindu Marriage Act, 1955. It was signed by Constitution. Initially, the matter was placed
both the parties. Both of them even appeared before a three Judge Bench. One of the
before the court. No decree for divorce, questions which was raised before the Bench
however, could be passed then. The matter was whether a judgment of the Supreme
was adjourned from time to time. All attempts Court (i.e. a judicial decision of a competent
of reconciliation failed. After six months of court) can be challenged by an aggrieved
presentation of petition but before passing of party under Article 32 of the Constitution of
divorce decree, the husband remarried to one India. The three Judge Bench thought it fit that
Sonia on 18.08.1985. On 27.03.1986, the wife the said question should be considered by
filed an application withdrawing her consent for the Constitution Bench of the Supreme Court
divorce. The husband objected to withdrawal and accordingly, the question was referred to
of consent. The Trial Court dismissed the Constitution Bench.
petition for divorce holding that there was no
consent by wife. Learned Single Judge of the
High Court, however, granted divorce inter alia
CURATIVE JURISDICTION
observing that the marriage has irretrievably
broken down and reunion was not possible. The Constitution Bench4 noticed the relevant
But the Division Bench of the High Court set provisions of the Constitution5 as also several
aside the said order. The husband approached decisions on the point6. It also noted that a
the Supreme Court. party aggrieved by a decision of the Supreme
Keeping in view cumulative effect of various Court may prefer a review petition under
aspects including the one that from the new Article 137 of the Constitution. But further
wed-lock, a child was also born, the Apex application of review is barred7. The Court,
Court granted divorce subject to fulfillment of in the circumstances, held that in order to
certain conditions. The review petition against prevent abuse of process and to cure gross
the judgment was also dismissed. miscarriage of justice, it must be open to the
court to reconsider its decision in exercise of
its inherent jurisdiction.

To achieve the aforesaid object and to do full

34
and complete justice, the Apex Court devised may be circumstances, as mentioned above,
a method which had been termed as “curative” wherein declining to reconsider the judgment
petition. Speaking for the majority8, Quadri, J. would be oppressive to judicial conscience and
stated; cause perpetuation of irremediable injustice”.9

“The concern of this Court for rendering The Hon’ble Court, however, was conscious
justice in a cause is not less important than of inherent dangers of floodgates being
the principle of finality of its judgment. We are opened under the name and style of ‘curative’
faced with competing principles - ensuring petitions. On the one hand, the Court was
certainty and finality of a judgment of the inclined to grant such opportunity to prevent
Court of last resort and dispensing justice on the abuse of process of court and to prevent
reconsideration of a judgment on the ground gross miscarriage of justice taking note of
that it is vitiated being in violation of the principle human fallibility, while on the other hand, it
of natural justice or apprehension of bias due to intended to deter unscrupulous litigants to
a Judge who participated in decision making institute repeated review petitions under the
process not disclosing his links with a party to attractive label of ‘curative’ petitions.
the case, or abuse of the process of the court.
Such a judgment, far from ensuring finality, will The Hon’ble Court conceded that “it is
always remain under the cloud of uncertainty. neither advisable nor possible to enumerate
Almighty alone is the dispenser of absolute all the grounds on which such a petition may
justice - a concept which is not disputed but by be entertained”,10 but stated that the petitioner
a few. We are of the view that though Judges is entitled to relief ex debito justitiae if he
of the highest Court do their best, subject of establishes –
course to the limitation of human fallibility, yet
situations may arise, in the rarest of the rare (i) violation of the principle of natural justice
cases, which would require reconsideration in that he was not a party to the lis but the
of a final judgment to set right miscarriage of judgment adversely affected his interests
justice complained of. In such case it would not or, if he was a party to the lis, he was not
only be proper but also obligatory both legally served with notice of the proceedings and
and morally to rectify the error. After giving our the matter proceeded as if he had notice,11
anxious consideration to the question we are and
persuaded to hold that the duty to do justice in
these rarest of rare cases shall have to prevail (ii) where in the proceedings a learned Judge
over the policy of certainty of judgment as failed to disclose his connection with
though it is essentially in public interest that a the subject – matter or the parties giving
final judgment of the final court in the country scope for an apprehension of bias and the
should not be open to challenge yet there judgment adversely affects the petitioner.12
35
The Hon’ble Court proceeded to observe exceptional cases15. The author, however, is
that in the curative petition, the applicant should of the opinion that the jurisdiction exercised
aver specifically that the grounds mentioned by the Supreme Court under curative petition
therein had been taken in the review petition is extraordinary and exceptional in nature and
and that the review petition was dismissed by should be exercised with extreme care, caution
circulation. The Court also insisted that such and circumspection.
curative petition must contain a certificate
by a Senior Advocate stating that all the 1. S. Nagraj v. State of Karnataka: 1993
requirements had been fulfilled.13 Supp (4) SCC 595; Sow Chandra Kante
v. S K Habib, (1975)1 SCC 674: AIR 1975
The Hon’ble Court further stated that as SC 1500; Northern India Caterers v. Lt.
the matter relates to re-examination of final Governor of Delhi; (1980) 2 SCC 167: AIR
judgment of the Supreme Court, though on 1980 SC 674: A. R. Antulay v. R. S. Nayak,
limited grounds, the curative petition has to (1988) 2 SCC 602: AIR 1988 SC 1531; Lily
be first circulated to a Bench of three senior- Thomas v. Union of India, (2000) 6 SCC
most Judges and the Judges who passed 224: AIR 2000 SC 1650; Rupa Ashok
the judgment complained of, if available. It is Hurra v. Ashok Hurra, (2002) 4 SCC 388:
only when a majority of the learned Judges AIR 2002 SC 1771.
conclude that the matter needs hearing that it
should be listed before the same Bench (as far 2. (1997) 4 SCC 226.
as possible) which may then pass appropriate
orders.14 3. (2002) 4 SCC 388: AIR 2002 SC 1771.

4. S. P. Bharucha, CJI, SSM Quadri, UC


CONCLUSIONS
Banerjee, S.N. Variava, Shivraj Patil, JJ.
Curative jurisdiction of the Supreme Court is
really an exception to the general rule that once 5. Articles 32, 124, 131-34, 136, 137,
a decision is rendered by a competent court, 139, 139A, 140, 141, 142, 143, 144,
it has to be accepted. Keeping in view human Constitution of India.
fallibility only on limited grounds even after
review, the Court has allowed the aggrieved 6. Naresh Shridhar Mirajkar v. State of
party to invoke this extraordinary jurisdiction. Maharashtra, (1966) 3 SCR 744: AIR 1967
It is submitted that the majority rightly held SC 1; A.R. Antulay v. R.S. Nayak, (1988) 2
that such jurisdiction should be exercised in SCC 602: AIR 1988 SC 1531; Triveniben
rarest of cases though one of the judges who v. State of Gujarat, (1989) 2 SCC 678;
concurred with the final judgment had some
reservation whether it should be exercised in
36
Krishna Swami v. Union of India, (1992) 4 alteram partem” (“hear the other side” or
SCC 605; Mohd. Aslam v. Union of India, “no man should be condemned unheard”
(1996) 2 SCC 749; Khoday Distilleries v. or “both the sides must be heard”)
Registrar General, Supreme Court of India;
(1996) 3 SCC 114; Gurbachan Singh v. 12. This principle is based on the doctrine of
Union of India, (1996) 3 SCC 117; Babu interest reflected in maxim “nemo debet
Singh v. Union of India, (1996) 6 SCC 565; esse judex in propria causa” (“no man
P. Ashokan v. Union of India, (1998) 3 SCC shall be a judge in his own cause” or
56. “adjudicating authority must be impartial
and without bias”).
7. Order XL, Rule 5, Supreme Court Rules.
13. It may be stated that after the decision
8. S.P. Bharucha, CJI, SSM Quadri, SN in Rupa Ashok Hurra, the Registry of the
Variava and Shivraj Patil, JJ. Supreme Court has issued “Practice
Note” on 15.04.2002 for compliance of
9. (2002) 4 SCC 388 : AIR 2002 SC 1771 requirements regarding filing of curative
(1787). petitions.

10. Ibid. 14. (2002) 4 SCC 388 : AIR 2002 SC 1771.

11. This is based on well known maxim “audi 15. Ibid, see concurring judgment of U.C.
Banerjee, J.

*******

37
38
‘Poverty as a Challenge to
Human Rights’
K.K. Venugopal*

On the occasion of the 68th Constitution declares justice, (social, economic, political),
Day, let us take stock as to what we have liberty and equality of status and opportunity
achieved during this very long period of almost among all and fraternity assuring the dignity
seven decades with respect to the onerous of the individual and integrity of the nation. We
task of alleviating poverty and restoring dignity find Articles which provide for the abolition of
to the poor. untouchability and prohibiting enforcement
of any disability arising out of untouchability
I believe that it was Pope Francis who had shall be an offence punishable in accordance
said, with the law. Begaar or any kind of slavery is
abolished. This raises the question as to how
“Human rights are not only violated by far have we, as a people, been able to secure
terrorism, repression or assassination, these lofty ideals of our founding fathers. We
but also by unfair economic structures find that a vast percentage of the population
that creates huge inequalities.” of this country is living in utter-penury and this
goes into hundreds of millions. The State has
We have been given in 1950 a very been unable to provide for universal education
powerful Constitution and its outstanding in the period of 70 years. The health services
characteristics is its egalitarian concepts of the poor appears to be in shambles.
woven into its Preamble and its chapter Employment is still to achieve its goals.
on Fundamental Rights. Among its vibrant
provisions are Article 21 of the Constitution The popular belief is that it is only torture,
which protects life and personal liberty and physical abuse and illegal detentions that
above all the equality provision contained would be comprehended within the concept
in Article 14 followed by Articles 15 and 16 of Human Rights. When I started researching
and these together sum up the profound the topic, it dawned on me that jurists and
philosophy of the Constitution. The Preamble economists had been exploring this topic
decades earlier. In fact, a mere perusal of
* Attorney General for India the United Nations Universal Declaration of
39
the Human Rights (UDHR) would show the to eat roots to fill their stomach, as they are
multifaceted aspects which are acknowledged unable to have access to food; we hear of girl
to be a part of Human Rights. children being sold by mothers so that they
may be able to feed the rest of their starving
Over 65 years have passed since the UDHR children; we hear of admission being refused
in 1948. The declaration covered the traditional in free government hospitals by the security
concepts of human rights, namely a statement guard at the gate, though the child was dying -
that no one shall be subjected to torture or cruel because the mother had no wherewithal to pay
and inhuman treatment or punishment; no one the bribe that the guard demanded. We even
shall be subjected to arbitrary arrest, detention read of the vast numbers of persons from the
or exile and so on. But tucked away practically poorest corners of the world, being forced to
at the end of the declaration is Article 25 which migrate over large distances in search of food
reads as follows: and employment. We have not experienced
the extreme pain of the bitter cold biting into
25.1 “Everyone has the right to a the bones of a pavement dweller at the height
standard of living adequate for the health of winter, who had only a thin sheet to cover
and well-being of himself and of his himself. Surely, all these cannot be consistent
family, including food, clothing, housing with the solemn declaration in Article 25 of the
and medical care and necessary social UDHR. I believe that it was Confucius who
services, and the right to security in said:
the event of unemployment, sickness,
disability, widowhood, old age or other "In a country well governed, poverty is
lack of livelihood in circumstances beyond something to be ashamed of. In a country
his control.” badly governed, wealth is something to
be ashamed of."
What is the reality behind the implementation
of the declaration contained in Article 25? Today, The statistics today make grim reading.
those of us in developing countries, when we The World Bank Development Indicators
look around, we see a large population living 2016, which has assessed the actual situation
in sub-human conditions; when our cars stop in regard to poverty, and is not based on
at traffic signals, one can scarcely fail to notice estimates or projections, paints a tragic picture.
the people who crowd around near the window According to the World Bank Development
asking for food or money. There are persons Indicators 2016, about 750 million poor
sleeping on pavements on cold, wintry nights. people around the world are living in extreme
Every day in newspapers we read about people poverty i.e. below the $1.90 per day poverty
in villages, far away from the comfortable lives line (before 2015, the poverty line was defined
that we lawyers lead, who are compelled
40
by the World Bank at $1.25 per day, which everyone in the world with at least 2,770
has been readjusted to $1.90 accounting for kilocalories (kcal) per person per day according
price inflation). The United Nations estimates to a 2012 Food and Agricultural Organisation
that as of 2012, more than 2 billion people estimate. However, the principal problem is
lived on less than $3.10 per day of which 900 that many people in the world do not have
million reside in the South Asian Countries. sufficient land to grow, or income to purchase,
According to a UNICEF report titled ‘State enough food. Poverty, conflict, disregard by
of the World’s Children 2016’, 46% of the the State and the lack of development result in
world’s population living in extreme poverty are the poor not being able to have access to this
children, with the United Nations ‘Report on food which is produced in excess each year.
Sustainable Development Goals 2016’ placing
the number of children with stunted growth to A long time back, as early as in 1876, the
be about 156.4 million as of 2014. The World’s U.S. Supreme Court in a judgment in Munn v.
Women 2015 Report found that of the 781 People of State of Illinois 94 U.S. 113, had
million adults over the age of 15 estimated to say this:
to be illiterate, 496 million were women. The
report further concluded that women make “No State ‘shall deprive any person
up more than half the illiterate population in of life, liberty, or property without due
all regions of the world. More than 122 million process of law,’ says the Fourteenth
youth globally, with about 60.7% of them Amendment to the Constitution. By the
being girls are illiterate, and are growing up term ‘life,’ as here used, something more
without access to basic education. According is meant than mere animal existence”.
to the UN Report on Sustainable Development
Goals, cited above, between 2000 and 2015, The Supreme Court of India through Chief
the proportion of the global population using Justice P.N. Bhagwati, had expanded on this
improved sanitation increased from 59 to 68 concept of the right to life not being a mere
percent. Yet the plight of 2.4 billion people animal existence and declared in Francis
did not improve, and a staggering 946 million Coralie’s case [(1981) 1 SCC 608], that
people, left without any sanitation facility at all,
continue to practice open defecation. “right to life is not a mere right to life
under Article 21 and cannot be restricted
It is not as if the poor are hungry because of to mere animal existence. It means much
lack of food. The world produces enough food more than just physical survival and that
to feed everyone. World agriculture produces further that the right to life includes the
17 percent more calories per person today right to live with human dignity and all
than it did 30 years ago, despite a 70 percent that goes along with it, namely, the bare
population increase. This is enough to provide necessaries of life such as adequate
41
nutrition, clothing and shelter and facilities social exclusion constitute a violation of
for reading, writing and expressing oneself human dignity. At the 1995 World Summit
in adverse forms, freely moving about and for social development held in Copenhagen,
mixing and mingling with fellow human the international community committed itself
beings…. .” to devising policies, strategies and concrete
action aimed at the eradication of poverty.
I had come across an article reported in the The UN proclaimed the decade between
international press, which referred to findings 1997-2006 as the International Decade for the
published by Oxfam, which showed that just Eradication of Poverty. It was for the first time
eight men own as much wealth as the poorest in 2000 that all the then member states of the
half of the world’s population. Oxfam had United Nations subscribed to the Millennium
called this gap “obscene”. It should of course Development Goals. In 2015, the Sustainable
be mentioned that at least some of these eight Development Goals were adopted which aim
men are known to be extremely charitable. at completely eradicating “extreme poverty” by
Yet this statistic sheds light on the grossly the year 2030.
inequitable world order that we now live in. The
English author, John Berger once said: “The Very many thinkers and writers have had no
poverty of our century is unlike that of hesitation in linking “dire poverty”, “absolute
any other. It is not, as poverty was before, poverty” or “extreme poverty”, call it what you
the result of natural scarcity, but of a set may, to an unequivocal violation of human
of priorities imposed upon the rest of rights. As the U.N. Commissioner for Human
the world by the rich. Consequently, the Rights, Mary Robinson, put it,
modern poor are not pitied…but written
off as trash”1. “Extreme poverty…is the greatest
denial of the exercise of human rights.
Perhaps this is the reason why Mahatma You don't vote, you don't participate in
Gandhi had once famously said “the world any political activity, your views aren't
has enough for everyone’s need but not listened to, you have no food, you have
enough for everyone’s greed”. no shelter, your children are dying of
preventable diseases - you don't even
It is rather tragic that it took the world have the right to clean water. It's a denial
45 years to recognize extreme poverty as of the dignity and worth of each individual
violation of the Human Rights Charter: At the which is what the Universal Declaration
1993 world conference on Human Rights, proclaims.”
it was affirmed that extreme poverty and
The Committee on Economic, Social and
1 Jeremy Seabrook, The No Nonsense Guide To World Cultural Rights stated in 2001 that poverty was
Poverty
42
“a human condition characterized by the engenders all these deprivations or conversely,
sustained or chronic deprivation of the the deprivation of all these basic rights is a sure
resources, capabilities, choices, security and undeniable proof of the existence of dire
and power necessary for the enjoyment poverty in that section of the population.
of an adequate standard of living and
other civil, cultural, economic, political But it is the misfortune of these poor,
and social rights2”. Extreme poverty, in turn, disadvantaged sections of society that States
has been defined as “the combination of have miserably failed in carrying out these
income poverty, human development obligations cast on them. In approaching
poverty and social exclusion3”, where this problem, one must remember that
a prolonged lack of basic security and the Universal Declaration of Human Rights
capabilities affects several aspects of people’s makes it clear that rights are not conferred
lives simultaneously, severely compromising by Government; they are the birth right of
their chances of exercising or regaining their all people and Governments are bound to
rights in the foreseeable future4. The UN Human protect them. Poverty, anywhere in the world
Rights Commission has specifically referred constitutes, at the most fundamental level, a
to “extreme poverty” as the key human rights denial of the rule of law. The reality is that the
concern of our times. One of the core aims of promise of equality, guaranteed by the United
the Sustainable Development Goals, 2015, is Nations Declaration of Human Rights and also
to end extreme poverty by 2030. the Constitutions of all our countries would ring
hollow for an unconscionably large section of
Today every State extends to its people a society even today.
catena of basic rights, fundamental rights and
human rights. This includes the right to freedom We therefore arrive at the big question – who
of speech, right to property, right to move is to blame for these gross failures? As already
freely, the right to form associations and among stated, the easiest way out is to blame it on fate
others, the right to carry on one’s profession, or on God. In such an event, one can treat the
trade or business. But to me, it seems that all victims of intense poverty as invisible beings
these basic rights are meaningless to a whole who had disappeared from sight and hence no
population suffering from utter deprivation and more required amelioration by positive, overt
poverty. Of what use is the freedom of speech action. The answer however, is provided by
if you do not have a job to fetch you two meals, Scott Leckie, a renowned international human
you have no shelter, you have no access to rights advocate, who in his paper presented in
medical facilities or to basic education. Poverty 1998 stated:

2 (E/C.12/2001/10, para. 8)
3 (A/HRC/7/15, para. 13) “When someone is tortured or when a
4 (see E/CN.4/Sub.2/1996/13) person's right to speak freely is restricted,
43
observers almost unconsciously hold the “If, however, poverty were declared
State responsible. However, when people to be abolished, as it should with regard
die of hunger or thirst, or when thousands to its status as a massive, systematic
of urban poor and rural dwellers are and continuous violation of human
evicted from their homes, the world still rights, its persistence would no longer
tends to blame nameless economic or be a regrettable feature of the nature
‘developmental’ forces or the simple of things. It would become a denial of
inevitability of human deprivation, before justice. The burden of proof would shift.
liability is placed at the doorstep of the The poor, once recognized as the injured
State. Worse yet, victims of such violations party, would acquire a right to reparation
are increasingly blamed themselves for for which governments, the international
creating their own dismal fates, and in community and, ultimately, each citizen
some countries even characterized as would be jointly liable.5”
criminals on this basis alone”.
Tom Campbell in his paper titled “Poverty as
Treating poverty as a violation of human a violation of Human Rights” says:
rights would also enable the Courts at the
international and more importantly, at the “…approaching poverty through the
national level, to enforce such rights. The prism of human rights is to lift it from the
Indian Supreme Court, for instance, has status of a social problem to that of an
treated the various facets of poverty such as unavoidable imperative. To talk of poverty
the right to food, right to shelter etc. as a part in terms of human rights violations is to
of the fundamental right to life under Article 21 endorse the parity and inter-connection
of the Constitution of India, which declares that of basic social and economic rights with
no person shall be deprived of his life or liberty fundamental civil and political rights...
other than through procedure established by Torture is held to be unacceptable,
law. This has enabled the Indian Courts to poverty merely unfortunate. The idea of
attempt to enforce these rights as they now poverty as a human rights violation is
create a positive obligation on the State. clearly intended to send a powerful moral
message that this bifurcation of human
The idea that ignoring poverty is a violation rights is a thing of the past.”
of human rights has also been propounded
by some renowned academics. For instance, We have, therefore, come to the conclusion
Pierre Sane, the Assistant Director-General that the obligation and duty to enforce the
Social and Human Sciences Sector of 5 Pierre Sane, ‘Poverty, the next frontier in the struggle
UNESCO had said in a paper published on for human rights’ Paper presented to an
International Seminar on ‘Poverty and Inequality in
poverty: Brazil’, Brasilia, 8-9 May 2003, p.4.
44
UDHR and the achievement of the Sustainable wherein companies may fulfill their obligations
Development Goals, is primarily on the State. towards ‘Corporate Social Responsibility’.
The Government would be violating Human Imagine, if each company took upon itself such
Rights if it were not to take positive, concrete an obligation, we might be able to significantly
steps for the purpose of rescuing that section of cut short the battle against poverty. As the
the population suffering grievous poverty from former President of the United States, Franklin
its tentacles. This raises the further question, is Roosevelt once said,
the obligation one that the State alone has to
discharge, or, are there other actors who have “The test of our progress is not whether
to participate in the exercise of eradication we add more to the abundance of those
of poverty. Today we have in most of our who have much; it is whether we provide
countries, multi-national corporations which enough for those who have too little.”
control industrial or business empires with all
the trappings of a State. Their budget equals In his book titled the ‘End of Poverty :
or exceeds that of an entire small country. Economic Possibilities for Our Time’, Jeffrey
Their employment goes into hundreds of Sachs made some estimates as to what it
thousands. The influence that they wield is so would cost to end extreme poverty in the world
great that they can affect the future of people in about twenty years and according to him,
and Governments. They are quasi states to end extreme poverty, the total cost per year
and, therefore, would have to share the burden would be about $175 billion. This represents
of eradicating poverty from within the sphere less than one percent of the combined income
of their influence. I firmly believe that the time of the richest countries in the world and this cost
has now come for creative solutions. The is 0.7% of the total income of the 30 countries
international community cannot continue to who comprised the Organization for Economic
rely solely upon the same methods that have Co-operation and Development (OECD) in
been tried for decades. I had for a long time 2005. Jeffrey Sachs points out that ending
been suggesting that an obligation be placed global poverty by 2025 will require concerted
on corporations with turnovers that exceed efforts and actions by the rich countries as well
a certain pre-determined number to adopt as the poor, beginning with a “global compact”
villages, and make themselves responsible for between the rich and the poor countries. The
the provision of basic amenities and facilities poor countries will have to take ending poverty
to the inhabitants of these areas. I am aware seriously and will have to devote a greater share
of some Indian companies both private and of their national resources to ending poverty
government, which have taken steps in this rather than to war, corruption, and political
regard, since the “eradicating extreme hunger infighting. The rich countries will need to move
and poverty” is one of the aspects specified beyond the platitudes of helping the poor, and
under the Indian Companies Act, 2013,
45
follow through on their repeated promises6. I am reminded of a quote by Dwight D.
Eisenhower, who had said:
It is interesting that while rich countries
find it difficult to meet their pledged donor “Every gun that is made, every warship
assistance, annual expenditure on nuclear launched, every rocket fired signifies in
weapons is estimated at US$105 billion – the final sense, a theft from those who
or $12 million an hour. Now consider this hunger and are not fed, those who are
World Bank’s forecast in 2002 - an annual cold and are not clothed. This world in
investment of just US$40–60 billion, or arms is not spending money alone. It is
roughly half the amount currently spent spending the sweat of its laborers, the
on nuclear weapons by all countries, would genius of its scientists, the hopes of its
have been enough to meet the internationally children. This is not a way of life at all in
agreed Millennium Development Goals on any true sense. Under the clouds of war,
poverty alleviation (that is halving the number it is humanity hanging on a cross of iron.”
of global poor) by the target date of 2015 7.
It is startling to see that the nuclear weapons We cannot, therefore, escape from the
spending in 2010 was more than twice the conclusion that it is primarily the Governments
official development assistance provided concerned that have to ensure that their wealth
to Africa and is equal to the gross domestic is evenly distributed so that they achieve the
product of Bangladesh, a nation of some 160 pious hope in Article-1 of the UDHR, “all
million people8. Less than one per cent of what human beings are born free and equal in
the world spent every year on weapons was dignity and rights”.
needed to put every child into school by the
year 2000 and yet it didn’t happen9. Is the It is the lack of will on the part of Governments
need for nuclear weapons in the modern world in regard to an entire class of deprived citizens,
more important than saving the millions of who are invisible because they do not mostly
poor from grinding poverty and providing for carry that great attraction to the powers-that-
the most basic human needs like food, shelter be, namely the vote. The poor migrants who
and primary health care or sending a child to move from place to place, trying to eke out a
school? bare minimum livelihood while being on the
verge of starvation stand totally excluded.
6 Jeffrey Sachs, The End of Poverty, Chapter 14 – A
They have to be given a voice, at least at the
Global Compact to End Poverty
7 http://www.icanw.org/the-facts/catastrophic-harm/a- grassroots level, where the poor have to be
diversion-of-public-resources/ represented by just one representative in the
8 http://www.icanw.org/the-facts/catastrophic-harm/a-
unit of local self Government. Their voice would
diversion-of-public-resources/
9 State of the World, Issue 287 - Feb 1997, New
Internationalist

46
then be heard and once their voice is heard No Government has the right to exist as a
throughout the country, one could expect an signatory to the United Nations Declaration on
indifferent Government to wake up and carry Human Rights and the various Conventions on
out its obligations under the UN Charter. Civil and Political as well as Economic, Social
We, who are passive spectators to this great and Cultural Rights while allowing vast sections
wrong which is being done to thousands of of its population to remain destitute, powerless
our fellow countrymen, are equally to blame. and on the verge of starvation. I would end
The State, if in need of funds, would have to with the words of that great humanist Nelson
levy a cess on every individual on his income Mandela, who said:
above a particular level. Every corporate entity,
having a turnover above a particular level, will “Massive poverty and obscene
have to adopt a whole village to ensure that inequality are such terrible scourges
the poverty stricken population has access of our times – times in which the world
to the promise held out in Article 25 of the boasts breathtaking advances in
UDHR “to a standard of living, adequate science, technology, industry and wealth
for the health and well being of himself accumulation – that they have to rank
and his family, including food, clothing, alongside slavery and apartheid as social
housing and medical care….and the right evils.”
to security in the event of unemployment,
sickness, disability…”

*******

47
48
The Myth and Reality of
Article 14 in the light of
Growing Inequalities
Fali S. Nariman*

Equality before the law is universally But the “starting point of all other liberties”
recognized. It has become an integral part was not always successful in Courts – not
of the written constitutions of nation-states even in the International Court of Justice: as
around the world. Nearly 75 per cent of these was graphically illustrated when the practice
Constitutions contain clauses about EQUALITY: of apartheid was first challenged before the
a fundamental principle of modern democracy International Court of Justice, in the South
and of government based on the rule of law. West Africa Cases (1966). The charge before
In a book published in 1945 (then, the first of the Court by the Applicant States (Ethiopia
its kind), Sir Hersch Lauterpacht,1 renowned and Liberia) was that South Africa had violated
jurist and president of the International Court her international obligations by observing a
of Justice, wrote about the pre-eminence of system of ‘apartheid’ in the mandated territory
Equality in the governance of states: of South West Africa, and had denied to
its inhabitants the universal human right of
“The claim to equality before the law is in equality before law and the right not to be
a substantial sense the most fundamental of discriminated against on account of colour
the rights of man. It occupies the first place or race – a bundle of rights, that had been
in most written Constitutions. It is the starting expounded in the UN Declaration of Human
point of all other liberties.” Rights, (1948). In the South West Africa Cases
(1966), the International Court of Justice by
* Senior Advocate
1 Sir Hersch Lauterpacht was a scholar-judge who the casting vote of its President, refused to
expanded the frontiers of law. It was he who expounded deal with the merits of the submission of the
for the first time what came to be known as ‘the modern
view’ of international law, which was that states, though applicant States. This furnished a glaring
primarily the subject of international law, were not instance of how lawyers – and Judges as well
exclusively so – a view that he introduced into the eighth
edition of Oppenheim’s International Law (Cambridge – quite often miss the opportunity to right the
Univeristy Press, Cambridge, 1945), which was edited wrongs of ages. Half of the Court’s members
by him. [Oppenheim (1858–1919) was a respected
German jurist.] (including the Japanese member Judge
Tanaka) were prepared to deal with the issue of
49
substance raised by the Complaining States. principle of equality. From the nature of this
Judge Tanaka’s judgment contains the best principle the answer must be in the affirmative.
exposition in legal literature of the concept of The legislators cannot be permitted to exercise
Equality. The purple passages in that judgment their power arbitrarily and unreasonably.
have been reproduced in an Appendix, in Ian They are bound not only in exercising the
Brownlie’s Compilation of Basic Documents of ordinary legislative power but also the power
Human Rights – even though Judge Tanaka to establish the constitution. The reason
had voiced the dissenting view – not the therefore is that the principle of equality being
majority view of the Court! in the nature of natural law and therefore of a
super-constitutional character, is placed at the
summit of hierarchy of the system of law, and
Judge Tanaka wrote2: that all positive laws including the constitution
shall be in conformity with this principle.”
“Human rights have always existed with the
human being. They existed independently of, If Judge Tanaka’s dissent had been the
and before, the State. Alien and even stateless majority view of the International Court of
persons must not be deprived of them. Justice, pressures, which the nations of the
Belonging to diverse kinds of communities world had begun to exert against South Africa
and societies – ranging from family, club, only from the nineteen-eighties would have
corporation, to State and international been exerted much earlier: The practice of
community, the human rights of man must be Apartheid may well have been discontinued
protected everywhere in this social hierarchy, many years before, without the oppressed
just as copyright is protected domestically and turning to the streets for redress! It may even
internationally. There must be no legal vacuum have kept Mr.Nelson Mandela on the path
in the protection of human rights. Who can which he first chose – of non-violent resistance
believe, as a reasonable man, that the existence – which, as a policy he later abandoned only
of human rights depends upon the internal or after the Sharpville shootings of the nineteen-
international legislative measures, etc., of the sixties. But these are some of the ‘ifs’ of
State and that accordingly they can be validly History.
abolished or modified by the will of the State?”
Nearer home, if Judge Tanaka’s dissent
“Under the constitutions which express this had been noticed in the case dealing with the
principle in a form such as “all citizens are equal effect of the suspension of Article 21 (the Life
before the law’, there may be doubt whether and Liberty Clause in our Constitution) during
or not the legislators also are bound by the the brief period of India’s Internal-Emergency
(imposed in June 1975), Chief Justice Ray may
2 See Reports of Judgments, Advisory Opinions and
Orders of the International Court of Justice 1996 at not have given expression to the facile view
50
pages 284-296.
“that liberty itself is the gift of the law, and may identification of backward classes; nor was
by the law be forfeited or abridged.” 3
it possible or advisable for the Court to lay
down any such procedure or method;
Another instance – of missed opportunities –
was when a Special Bench of nine Judges was  that it must be left to the appointed
constituted “to finally settle the legal position authorities to identify backward classes,
relating to reservations”. The reason given and so long as the identification (by a
was that several judgments of the Supreme survey) covered the entire populace no
Court had not spoken in the same voice on objection could be taken to it;
the issue of reservations, and that the final
look by a larger Bench would settle the law  that it was not necessary for a class to be
in an authoritative way. But expectations so designated as a backward class [and] that
raised (in the referral order) were dashed by the it was similarly situated to the Scheduled
decision subsequently rendered by a majority Castes and Scheduled Tribes; backward
in a Bench of nine Justices. classes of citizens could not be identified
only and exclusively with reference to
On the vital points raised in Indira Sawhney4, economic criteria;
there did emerge a majority view (6:3), but
the opinion of the majority was not expressed  that the distinction made in the office
firmly nor in peremptory language. This is what memorandum of 25 September 1991
the majority said5: between ‘poorer sections’ and others
among the backward classes was not
 that neither the Constitution nor the law invalid ‘if the classification is understood
prescribes the procedure or method of and operated as based upon relative
backwardness among the several classes
3 AIR 1976 S.C. 1207 at para 27 - ADM Jabalpur v. S.
Shukla identified as ‘Other Backward Classes’;
4 1992 (Supp.3) SCC 217.
5 Justice B. P. Jeevan Reddy on behalf of himself and
Chief Justice M. H. Kania, Justice M. N. Venkatachaliah  that the adequacy of representation of a
and Justice A. M. Ahmadi, concurred in by Justices S. particular class in the services under the
R. Pandian and P. B. Sawant, each of whom delivered
separate judgments. The dissenting justices – Justices State was a matter within the subjective
T. K. Thommen, Kuldeep Singh and R. M. Sahai – did satisfaction of the appropriate Government:
not agree that the office memorandum of 13 August
1990, which had been upheld by the majority, was valid. not to be ordinarily interfered with by Courts
They were in favour of declaring it to be unenforceable; on judicial review.
according to them reservation was a remedy only for
historical discrimination and its continuing ill-effects
whilst other affirmative action programmes were Foreclosing judicial review is a perilous step.
intended to redress discrimination of all kinds whether
current or historical. One of America’s longest serving justices in
the history of the US Supreme Court, Justice
51
William Douglas – his term lasted 36 years – of Justice Jeevan Reddy speaking for himself
and 209 days – had wisely observed that and three other Justices (concurred in by
‘judicial review gives time for the sober second separate judgments of Justices S. R. Pandian
thought’. and P. B. Sawant), only the first part of Dr
Ambedkar’s speech was quoted, which read:
In the Constituent Assembly Dr. Ambedkar
had indicated what he perceived as the court’s “Somebody asked me: ‘What is a backward
role in the determination of reservations for community?’ Well, I think anyone who reads
OBCs.6 He had said that the rule of equality the language of the draft itself will find that
of opportunity must not get destroyed by the we have left it to be determined by each local
magnitude of the reservation prescribed by the Government. A backward community is a
executive authorities. This is how he put it: community which is backward in the opinion
of the Government …”
“My honourable friend Mr. T. T.
Krishnamachari [a member of the Constituent But the latter part (“personally I think it would
Assembly who went on to become the Union be a justifciable matter”) – the more pertinent,
finance minister in 1957] asked me whether the more relevant part – where the architect
this rule (viz., that a backward community is of the Constitution had opined that it was a
that which is backward in the opinion of the justiciable matter, was not even mentioned in
Government) will be justiciable. It is rather the main judgment of Justice Jeevan Reddy,
difficult to give a dogmatic answer. Personally I nor in the concurring judgments of Justices
think it would be a justiciable matter [emphasis Pandian and Sawant!
added]. If the local Government included in this
category of reservations such a large number In Indira Sawhney, a great opportunity to lay
of seats; I think one could very well go to the down the limits beyond which the government
Federal Court and the Supreme Court and say could not go was passed over.
that the reservation is of such a magnitude that
the rule regarding equality of opportunity has Where the court could have, and should
been destroyed and the court will then come to have, spoken authoritatively it refrained from
the conclusion whether the local Government doing so, particularly in that portion of its
or the State Government has acted in a judgment dealing with ‘whether reservations
reasonable and prudent manner.” are anti-meritarian’? Whilst correctly holding
that ‘it may not be said that reservations (per se)
In the majority judgment – in Indira Sawhney are anti-meritarian’, the court (majority) did say
that there were certain services and positions
6 Constituent Assembly Debates, 8 November 1948,
Vol. 7, p. 702. where, whether on account of the nature of
the duties attached to them or the level (in the
52
hierarchy) at which they obtain, ‘merit alone constitutional guarantee of Equality before the
counts’. But then the court went on to simply Law and the Equal Protection of the Law. It
caution that ‘in such situations it may not be appeared as if Articles 15 and 16 had become
advisable to provide for reservations’; it was the reality, and the Great Article 14 had
for the Government of India (the court said) to retreated into the myth!]
consider and specify the service and posts to
which the rule of reservation shall not apply. The concept of equality in our Constitution
has two distinct dimensions. First, it embodies
Again, even after enumerating in detail the the principle of non-discrimination [Articles 14,
services and posts where (in the opinion of the 15(1), (2) and 16(2)], and second, at the same
majority) ‘there should be no rule of reservation’ time, it obligates the state to take affirmative
in certain services (mentioned in detail in the action for ensuring that unequals (the
judgment of Justice Jeevan Reddy), viz.: downtrodden, the oppressed and the have-
nots) in society are brought at a level where
“In defence services, in technical posts in they can compete with others (the haves of
establishments engaged in Research and society) [Articles 15(3) (4) (5), 16(4), (4-A), (4-B),
Development including those connected with 39, 39-A and 41].7 But as to which ‘dimension’
atomic energy and space, in teaching posts is the more important in a given case, and as
of Professors, in posts in super-specialities in to what should be the balancing factor in the
medicine, engineering and other scientific and broad conspectus of the Equality Provisions,
technical subjects, in posts of pilots and co- was for the Supreme Court to say. It could not
pilots in Indian Airlines and Air India”; be left – it cannot be left – for the government
of the day to provide or for a commission
the court (majority) went out of its way appointed by the government to determine!
to add:
Marc Galanter has offered a philosophical
“The list given above is merely illustrative and justification for the lack of a strong consistent
not exhaustive. It is for the Government of India judicial approach in the field of (what he
to consider and specify the service and posts describes as) ‘compensatory discrimination’:8
to which the rule of reservation shall not apply,
but on that account the implementation of
7 See Union of India vs Pushpa Rani, 2008 (9), SCC
the impugned Office Memorandum dated 13 242, para 39, p. 271 (Justice B. N. Agrawal and Justice
August 1990 cannot be stayed or withheld.” G. S. Singhvi).
8 Marc Galanter: Competing Equalities, Law and the
Backward Classes in India, University of California
The passages quoted above – in my view Press, Los Angeles, 1984, p. 567. The same passage
is repeated in the paperback Indian edition, Oxford
– indicate an almost deliberate abdication by University Press, New Delhi, 1991.
the majority of its solemn duty of upholding the
53
“Compensatory discrimination offers a way constitutional understanding of inclusive and
to leaven our formalism without entirely integral justice.” [emphasis added].9
abandoning its comforts. The Indian example
is instructive: India has managed to pursue What has been sorely lacking in India is the
a commitment to substantive justice without critique of the country’s highest court!
allowing that commitment to dissolve
competing commitments to formal equality It is precisely because Indian society is so
that make law viable in a diverse society with diverse and there is little or no consensus
limited consensus. The Indian experience (as Galanter says) that an effective judicial
displays a principled eclecticism that avoids pronouncement by the Supreme Court would
suppressing the altruistic fraternal impulse have provided a very helpful guide, and, more
that animates compensatory policies, but that importantly, it would have served as a most
also avoids being enslaved by it. From afar it useful check. The court, when called upon to
reflects to us a tempered legalism – one which lay down the ‘law’, unfortunately, yielded to the
we find more congenial in practice than in temptation of not firmly saying either yea or nay.
theory [emphasis added]. If only the majority in Indira Sawhney (and it
was a learned, experienced and distinguished
But whatever the view ‘from afar’ (sometimes, majority) had set the goalposts, and had
distance does, lend enchantment to the view!), specified what could or could not be done in
the experience of others, within India, has the matter of ‘reservations’, its exposition in its
been far more pragmatic and realistic; it has judgment would then have been regarded as
been expressed in the following terms: ‘law’, binding on us all under Articles 141 and
144 of the Constitution.10 Instead, there have
“From being an instrument of egalitarianism, been only bits of advice and recommendations
the reservation policy is now seen as the from the court, which, since they were not
most blatant expression of what has come expressed in authoritative terms, have been
to be known as ‘vote-bank politics’. This is largely ignored!
particularly so in regard to reservations for the
OBCs in the post-Mandal scenario, where the 9 Rudolf C. Heredia: ‘Quotas and Minority Rights:
most contentious controversies are centred. Recapturing the Constitutional Vision’, Economic and
Political Weekly, 23 July 2011, Vol. XLVI, pp. 66-67.
It is precisely here that affirmative action
seems to be falling short. Addressing one 10 Articles 141 and 144 of the Constitution read as
follows:
injustice or inequality at the cost of causing
141. Law declared by Supreme Court to be binding on
others will only politicise society further, not all courts. The law declared by the Supreme Court shall
make it more equitable or egalitarian. Both be binding on all courts within the territory of India.
144. Civil and judicial authorities to act in aid of the
Parliament and the Court must critique
Supreme Court: All authorities, civil and judicial, in the
reservation policies and legislation from a territory of India shall act in aid of the Supreme Court.
54
In Indira Sawhney (1992), in para 861 of Government in the list, i.e., the list prepared
the majority judgment, the following directions by the Government of India from time to
were given: time for purposes of making provisions for
the reservation of appointments or posts in
1. that the Government of India and each favour of backward classes of citizens which,
of the State Governments and the in the opinion of that government, are not
Administrations of Union Territories would adequately represented in the services under
within four months constitute a permanent the Government of India and any local or other
body for entertaining, examining and authority within the territory of India or under
recommending upon requests for the control of the Government of India. The list
inclusion and complaints of over-inclusion is an ongoing one to be revised (with inclusions
and under-inclusion in the lists of other or exclusions) every 10 years based on the
backward classes of citizens – the advice advice of the Backward Classes Commission.
tendered by such body being ordinarily But the ‘advice’ of the commission is declared
binding upon the Government; and to be ‘ordinarily binding upon the Central
Government’ (Sections 9 and 11).12
2. within four months the Government of
India would specify the bases, apply the There is no guidance either from Parliament
relevant and requisite socio-economic or the Supreme Court as to the governing
criteria to exclude socially advanced legal principles. The Central Government is
persons/sections (‘creamy layer’) from now empowered (under Section 11) to include
Other Backward Classes and the in the list ‘new backward classes’, but on
implementation of the impugned Office
12 9. Functions of the Commission:
Memorandum of 13 August 1990 would
(1) The Commission shall examine requests for inclusion
be subject to exclusion of such socially of any class of citizens as a backward class in the
lists and hear complaints of over-inclusion or under-
advanced persons (‘creamy layer’).
inclusion of any backward class in such lists and tender
such advice to the Central Government as it deems
appropriate.
The directions were complied with. Pursuant
(2) The advice of the Commission shall ordinarily be
to these directions, Parliament then passed the binding upon the Central Government.
National Commission for Backward Classes 11. Periodic revision of lists by the Central Government:
Act 1993,11 in which the term ‘backward (1) The Central Government may at any time, and shall,
at the expiration of 10 years from the coming into force
classes’ was defined exhaustively as meaning of this Act and every succeeding period of 10 years
such backward classes of citizens other than thereafter, undertake revision of the lists with a view
to excluding from such lists those classes who have
the Scheduled Castes and the Scheduled ceased to be backward classes or for including in such
Tribes, as may be specified by the Central lists new backward classes.
(2) The Central Government shall, while undertaking
11 A permanent body was to be set up known as the any revision referred to in subsection (1), consult the
National Commission of Backward Classes. Commission.

55
what criteria is not stipulated. The National – in Ashoka Kumar Thakur vs Union of India
Commission for Backward Classes Act 1993 and Ors. (2008), the constitutional validity
has conferred far-reaching powers on the of Article 15(5) – added by the Constitution
commission. Parliament has also viewed 93rd Amendment Act 2005 – was challenged
Articles 15 and 16 as distinct and separate before a bench of five justices of the Supreme
provisions, independent even of the main Court on the ground that it was contrary to the
equality clause (Article 14), overlooking prior ‘basic structure of the Constitution’, because
Constitution Bench decisions rendered by the thrust of our Constitution was to establish
the Supreme Court13, which have held that a casteless society – the challenge was
the ‘three provisions (Articles 14, 15 and 16) negatived (4:1).15
form part of the same constitutional role of
guarantees and supplement each other’. The court held that Article 15(5) was valid to
the extent that it has permitted reservation for
By the 1992 judgment in Indira Sawhney, socially and educationally backward classes in
and ever since the enactment of the National state (or state-aided) educational institutions
Commission for Backward Classes Act 1993, the with the exclusion of the ‘creamy layer’ from
highest court has denied itself its constitutional amongst the OBCs. Justice R. V. Raveendran
function as the guardian of Equal Protection (in a separate judgment, concurring with the
under the Law – a right solemnly guaranteed by majority) went on to add:
Article 14 of the Constitution of India.
“Failure to exclude the ‘creamy layer’ from
In balancing ‘equal treatment’ and the benefits of reservation would render the
‘compensatory discrimination’, Indira Sawhney reservation for other backward classes under
(followed in subsequent decisions) has left it to Act 5 of 2007 unconstitutional.”16
politicians and administrators as to how far they
could go. It is only in M. Nagaraj vs Union of That is to say, failure to exclude the ‘creamy
India (2007)14 that a Constitution Bench of the layer’ would violate the basic structure of the
Supreme Court of India said (for once, boldly Constitution17. But these were empty words:
not timidly), but only in respect of one aspect 15 2008 (6), SCC 1.
16 2008 (6), SCC 1, para 650, p. 711.
of ‘reservations’, viz., that the ceiling limit of
17 The court also held, in keeping with the unanimous
50 per cent reservation for backward classes, decision of a bench of seven judges in P. A. Inamdar
vs State of Maharashtra (2005), that the exclusion of
was, and is ‘a constitutional mandate’!
minority educational institutions from the purview of
Article 15(5) was valid, but the question of validity (i.e.,
the constitutional validity) of the inclusion of private
Then again (another opportunity missed!)
unaided institutions within the purview of Article 15(5)
13 See General Manager, Southern Rly vs. Rangachari, was ‘left open’: soon to be ‘closed’ by the decision of
AIR 1962, SC 36 (five judges), p. 41, para 16, and State two justices (in a bench of three) in Society for Unaided
of Mysore Vs. P. Narasinga Rao, AIR 1968, SC 349 (five Private Schools of Rajasthan vs Union of India and Anr.
judges), p. 351. The judgment, dated 12 April 2012, held that it was
14 M. Nagaraj VS. Union of India, AIR 2007, SC 71. constitutionally permissible to include private unaided
56
educational institutions within the purview of Article 15!
because the mode or method for exclusion inserted by the Ninety-third Amendment,
from the ‘creamy layer’ was neither prescribed is consistent with the other provisions of
by Parliament nor by the Judges! the Constitution or whether its impact runs
contrary to the constitutional aim of achieving
Lacteal phraseology like ‘creamy layer’ a casteless and classless society [emphasis
has now come into vogue in judicial added].
pronouncements! In a recently published
book,18 the author refers to a black union 362. On behalf of the petitioners, it was
leader who described the economy of South eloquently argued that if Article 15(5) is permitted
Africa as ‘cappuccino economy’ with ‘white to remain in force, then, instead of achieving the
cream over the large black mass, sprinkled goal of a casteless and classless society, India
with some black chocolate on top’! The remark would be converted into a caste-ridden society.
may or may not have been appropriate. But in The country would forever remain divided
the context of OBCs, the expression ‘creamy on caste lines. The Government has sought
layer’ is hopelessly inappropriate: because to repudiate this argument. The petitioners’
when milk is boiled, the ‘creamy layer’ readily argument, however, echoes the grave concern
floats up to the top and is easily skimmed off: of our Constitution’s original Framers.
but alas not when determining who, or how
many OBCs, have become economically 363. On careful analysis of the Constituent
better off by having ‘floated to the top’ (and to Assembly and the Parliamentary Debates, one
be henceforth skimmed off and so excluded thing is crystal clear: our leaders have always,
from the general class of OBCs)! and unanimously, proclaimed with one voice
that our constitutional goal is to establish a
Ashoka Kumar Thakur vs Union of India casteless and classless society.
(2008) was not a unanimous judgment of the
Constitution Bench of five justices. The judge He then dealt with the question (posed in
who dissented was in a (brave) minority of one. para 361) in succeeding paragraphs (537–560)
At the very commencement of his separate of his judgment and concluded as follows:
judgment, Justice Dalveer Bhandari (now a
Judge in the International Court of Justice) “605. In conclusion, the First Parliament, by
posed what he rightly described as ‘the enacting Article 15(4), deviated from the original
fundamental question’: Framers’ intent. They passed an amendment
that strengthens rather than weakens
“361. The fundamental question that arises casteism. If caste-based quotas in education
in these writ petitions is: Whether Article 15(5), are to stay, they should adhere to a basic tenet
of secularism: they should not take caste into
18 Ruchir Sharma: Breakout Nations, Allen Lane,
London, 2012. account. Instead, exclusively economic criteria
57
should be used. For a period of 10 years, of the laws within the territory of India.”
other factors such as income, occupation and
property holdings, etc., including caste, may The tension (in this Article) between a
be taken into consideration and thereafter commitment to non-discrimination as well as
only economic criteria should prevail. [But] to equality had been poignantly expressed
Indira Sawhney (1992) has tied our hands. I by India’s Prime Minister, Jawaharlal Nehru,
nevertheless believe that caste matters and will during the debate in Parliament at the time of
continue to matter as long as we divide society the Constitution First Amendment Bill (in May
along caste lines. Caste-based discrimination 1951):
remains. Violence between castes occurs.
Caste politics rages on. Where casteism is “We cannot have equality because in
present, the goal of achieving a casteless trying to attain equality we come up against
society must never be forgotten. Any legislation some principles of equality …. We cannot
to the contrary should be discarded.” have equality because we cannot have non-
discrimination because if you think in terms of
Justice Bhandari’s regret that ‘caste-based giving a lift up to those who are down, and out,
discrimination remains’ is a cry of distress – you are somehow affecting the present status
albeit in the wilderness – and a courageous quo undoubtedly. Therefore you are said to be
appeal (as in the case of all dissents) to ‘the discriminating because you are affecting the
brooding spirit of the future’! But after the present status quo. Therefore if this argument
majority decision (4:1) in Ashoka Kumar Thakur is correct, then we cannot make any major
(2008), whatever the Preamble may say, the change in that respect because every change
vision of a secular society can no longer be said means a change in the status quo, whether
to be the true aim of our written Constitution. economic or in any sphere of public or private
A great opportunity has been missed by the activity. Whatever law you may make, you have
court to steer the ship of state into casteless to make some change somewhere. Therefore
waters. It is the Supreme Court of India itself we have to come to grips with this subject in
that has helped to perpetuate the division of some other way.19
Indian society along caste-based lines.
Over the past 70 plus years, we have not as
We in India have not (so far!) resolved the yet - ‘come to grips with this subject’!
complexities that lie buried in the great, but
elusive, doctrine of EQUALITY spelt out in To what extent should the claim based on
Article 14 which provides that: merit and on the Fundamental Right to Equality

19 Parliamentary Debates, Vol. XII-XIII, Part II, Col.


“The State shall not deny to any person 9617, 29 May 1951.
equality before the law or the equal protection
58
be ignored? How far does our document of way: and competition, by itself, simply does
governance, truly interpreted, direct us to go? not necessarily bring the best results. Anthony
How soon are we to atone for the oppression Marx spoke about the history of inequality in
of the lower castes for centuries? Should we America: about how in the United States, poor
go on equalizing under a regime of enforced neighbourhoods have poor schools and bad
downward uniformity? And for how long? These teaching, whilst rich neighbourhoods have
questions keep surfacing periodically, but the very good schools; and the divide is sharp.
answers given are never quite satisfactory or
convincing. There is a history of inequality in America,
and he emphasised the need for higher
Some time ago one of America’s youngest education to be an equaliser – “no society, not
College Presidents, Anthony Marx, was on a American or Indian” (he has said) “can progress
visit to India – and he provided us with some with inequality. If you have affirmative action in
home-truths about the elusive doctrine of education, it is a win-win situation for everyone
equality. Anthony Marx is President of the for the underprivileged and the economy.”
Amherst College, a college established in the
United States way back in the year 1821. In Anthony Marx spent some years in South
an interview to a national newspaper in Delhi Africa where black students had been
he said that his college Amherst, supports 64 subjected to apartheid education, designed to
per cent of its students with financial aid – the keep them down. And he said that when these
highest number in any US College; and he young people were given high quality courses
also said that colleges like Yale, Princeton and for a year the same students who were kept
Harvard, which have been traditionally catering down started doing well. He quoted Nelson
to ‘white’ privileged students, have now been Mandela, the wisest of all living statesman who
realising the social need to reach out to ‘the had said:
blacks’, ‘the browns’ and the less privileged!
“we need to make sure that the doors of
He then spoke about talent. He said that learning are always kept open.”
those who have had privileged backgrounds are
often visibly talented – but that is only because Words that need re-telling – we in this
they have had exposure. The obsession about country also “need to make sure that the doors
merit is really only one facet of better exposure: of learning are always kept open.”
and the truly meritorious are often the ones
who are better exposed! Even in the year 2017, the representation of
the underprivileged in public employment has
Young people who are poor are not talented continued to remain grossly disproportionate
because they are not exposed in an obvious when compared to those belonging to the more
59
privileged classes. And as Ralph Bunche20 so long as gross disparities between the very
had warned: ‘Inalienable rights can never be rich and the very poor get accentuated (as they
enjoyed posthumously!’ have in recent years), the ideal of an egalitarian
society envisaged in our basic document of
But on the other side of the argument, governance will remain an evanescent dream.
there is the spectre of agitated public opinion, Whatever the nation’s karma, our founding
which cannot be ignored: The judges, who fathers cannot be faulted for a lack of idealism;
have the final say in all constitutional matters, nor can Providence. It is not in our stars but in
have interpreted compensatory discrimination ourselves that we are thus! It is not because
clauses in our Constitution differently at of our Constitution, but, despite its provisions
different times. that, as a nation, we have failed to fulfil what
were naïvely assumed to be achievable goals.
One thing is certain: so long as poverty – We, the people of India, boldly abolished
dire poverty – continues to stalk the land and untouchability in our Constitution – but after
nearly 70 years of its working we have not
20 Ralph Bunche (African-American) was an academic
been able to eliminate it from our hearts!
and diplomat who was awarded the 1950 Nobel Peace
Prize.

*******

60
Creative Role of Supreme Court of
India in Enlarging
and Protecting Human Rights
Soli J. Sorabjee*

15th August 1947 was a historic event in deprivation of life and personal liberty. There are
the life of our nation when “after a long night constitutional provisions to prevent exploitation
of waiting and of silent prayers”, India attained of children. Minorities are guaranteed linguistic
freedom. and cultural rights, and the right to establish
and administer educational institutions of their
On 26th November 1949 after debates in the choice.
Constituent Assembly which lasted for nearly
three years, the people of India gave unto Fundamental rights are enforceable against
themselves a Constitution which among other the State and its manifold instrumentalities and
things guaranteed to them a comprehensive also against bodies and institutions in which
array of basic human rights. These occupy pride there is significant government control and
of place in Part III of the Constitution under the involvement.
heading of Fundamental Rights. They broadly
correspond to the International Covenant Fundamental rights are enforced by an
on Civil and Political Rights 1966 [ICCPR]. independent judiciary exercising the power
They comprise constitutional guarantees of of judicial review. Laws and executive action
equality, freedom of expression, assembly and which are in breach of any fundamental right
association, freedom of movement, freedom to have been invalidated.
carry on profession and business, freedom of
conscience and religion. There are guarantees The Indian judiciary has played a creative
against retrospective criminal laws, double role in the interpretation of the Constitution.
jeopardy and self-incrimination and against Fundamental rights which are not specifically

* Former Attorney General for India

61
mentioned have been spelt out and deduced the bare necessities of life such as adequate
on the theory that certain unenumerated rights nutrition, clothing and shelter over the head”.
are implicit in the enumerated guarantees. Based on this interpretation our Supreme
Court has ruled that the right to live with human
May I give some illustrations. The Constitution dignity encompasses within its ambit, the
of India does not specifically guarantee freedom protection and preservation of an environment
of the press as a fundamental right. In several free from pollution of air and water. Health and
decisions of the Supreme Court freedom sanitation have been held to be an integral
of the press has been held to be implicit in facet of the right to life.
the guarantee of freedom of speech and
expression and has thus acquired the status In its efforts to prevent environmental
of a fundamental right by judicial interpretation. degradation the Court has ordered certain
The Supreme Court by interpretation of the tanneries and chemical industries which were
free speech guarantee deduced the right to discharging effluents into lakes and rivers to
know and the right of access to information stop functioning, unless the effluents were
on the reasoning that the concept of an open subjected to a pre-treatment process by setting
government is the direct emanation from the up primary treatment plants as approved by
right to know which is implicit in the guarantee the State Pollution Boards. In its battle against
of free speech and expression. pollution Supreme Court has issued directions
that all commercial vehicles in Delhi which were
The right to travel abroad and return to 15 years old and which could cause vehicular
one’s country has been spelt out from the pollution should be debarred from plying on
expression “personal liberty” in Article 21 of public roads.
the Constitution. Although there is no specific
provision in the Constitution prohibiting cruel, It is rightly accepted that guaranteed
inhuman and degrading punishment or fundamental rights are not absolute. They can
treatment, the Court has evolved this guarantee be reasonably restricted in public interest. The
from other provisions of the Constitution. Right question whether the restriction imposed is
to privacy has also been spelled out based on unreasonable, excessive or disproportionate
the inherent human right to be left alone. has to be determined by an independent
judiciary exercising the power of judicial
The expression “life” in Article 21 received review. This delicate judicial task of striking
an expansive interpretation. The Court ruled the balance requires understanding not merely
that “life” does not connote merely physical of the legal and constitutional provisions but
or animal existence but embraces something of the prevalent economic and sociological
more, namely “the right to live with human forces and the contemporary mores of society.
dignity and all that goes along with it, namely The endeavour of Courts in India has been
62
to achieve an acceptable accommodation of human rights are universal, indivisible and
the conflicting interests of the individual, the interdependent and interrelated”. This has put
society and the State. There is no royal road to rest the controversy regarding the superiority
to achieve such accommodation. Courts of one set of rights over the other. However at
have on occasions not struck the balance the operational level in developing countries
right. Perfection is not the attribute of socio-economic rights would have priority in
common humanity, and judges have not been matter of implementation. For example, if the
vouchsafed the divine gift of infallibility. choice is between a new television tower which
would enhance freedom of expression and the
The distinction between generational building of roads and hospitals limited financial
rights, namely civil and political liberties (first resources would tilt the choice in favour of the
generation), social, economic and cultural latter.
(second generation) and environmental (third
generation) is a bit rigid. It fails to recognise the The most remarkable craftsmanship
dynamic aspect of evolution of human rights. displayed by the Supreme Court in promoting
It would be more appropriate to regard the human rights has been to incorporate into
change in the idea of rights over a period of fundamental rights some of the Directive
time as different 'waves'. Principles, such as those imposing an obligation
on the state to provide a decent standard
The first wave of human rights came around of living, a minimum wage, just and humane
the late eighteenth century which witnessed the conditions of work, and to raise the level of
drafting of the US Bill of Rights and the French nutrition and of public health. This has been
Declaration of the Rights of Man, which were achieved by placing a generous interpretation
primarily concerned with guaranteeing liberty on the expression ‘life’ in Article 21 of the
against state tyranny and against religious Constitution which has been mentioned above.
persecution. The second wave was generated
by the atrocities committed by the Nazis before Access to justice is recognised as a basic
and during the Second World War. The present human right. In order to achieve that it is
new wave of rights focuses upon the values necessary that the doctrine of locus standi
of dignity, equality and community. It has been should not be rigid. Our Supreme Court has
aptly described as a search for certain basic liberalized this rule of standing in public law and
values to guide human behaviour. Dignity is the ruled that where judicial redress is sought for
moral and intellectual source of human rights legal injury done to indigent and disadvantaged
in present times. persons, who on account of economic
disabilities are unable to approach the courts
The Vienna Declaration on Human Rights themselves, any member of the public acting
in June 1993 explicitly recognises that “all bona fide and not for oblique considerations,
63
can maintain an action on their behalf. In countries where fundamental rights are
violated extensively, whether in flouting of
Rights without remedies are useless. A mere labour laws, illegal detentions, discriminatory
declaration of invalidity of an executive order or actions, and other violations, a cynic may well
an administrative decision which has resulted taunt and question the utility of the Chapter
in the violation of person’s fundamental rights on Fundamental Rights. The answer is that
would not provide a meaningful remedy. The it empowers citizens and groups fighting for
ICCPR provides that “anyone who has been the justice to approach the court and provides
victim of unlawful arrest or detention shall have opportunities for vindicating the Rule of Law.
an enforceable right to compensation” [see It also establishes norms and standards which
Article 9(6)]. The Indian Constitution contains can be used to educate people to know,
no such explicit provision. Nonetheless the demand and enforce their basic rights. It
Supreme Court has, in some cases, ordered has a salutary effect on administration which
payment of compensation by the State as a knows that it has to conform to the discipline
remedy in public law. The National Commission of fundamental rights. The effort should be to
to Review the Working of the Constitution ensure that fundamental rights guaranteed
[NCRWC] has recommended that right to in a Constitution are made living realities
compensation for violation of a person’s life or for the weak, vulnerable and marginalised
liberty be made an enforceable fundamental sections of Society. Moreover, the Chapter of
right by an express provision in the Constitution. Fundamental Rights in the Constitution is a
This salutary recommendation has not yet been constant reminder that the powers of the State
fully implemented. Judicial activism seems to are not unlimited and that human personality
provide an alibi for procrastination. is sacred and human rights are invaluable. We
need these reminders constantly.

*******

64
Uniform Civil Code and the Quest
for Gender Justice
Prof. N. R. Madhava Menon*

“The State shall endeavour to serve for the before the law or the equal protection of the
citizen a uniform civil code throughout the laws and from discriminating against any citizen
territory of India”.1 on grounds only of religion, race, caste, sex,
or place of birth for any employment or office
under the State. Untouchability is abolished
The Constitutional Scheme for and made an offence punishable under law.
Gender Justice and Equality:
The Directive Principle of State Policy which
Equality and social justice are two are made fundamental in the governance of
fundamental values repeatedly elaborated the country direct the State to minimise the
throughout the Constitution of India. The inequalities in income and eliminate inequalities
Preamble declares the resolve of WE, THE in status, facilities and opportunities, not
PEOPLE OF INDIA to secure to all its citizens only amongst individuals but also amongst
JUSTICE, social, economic and political; groups of people residing in different areas or
EQUALITY of status and of opportunity and engaged in different vocation. The State, shall,
FRATERNITY assuring the dignity of the in particular, direct its policy towards securing,
individual and the unity and integrity of the inter alia, that men and women equally, have the
Nation. Among the guaranteed Fundamental right to an adequate means of livelihood and
Rights, priority is given to Right to Equality that there is equal pay for equal work for both
(Articles 14 to 18) under which the State is men and women. The Directive to secure for
prohibited from denying to any person equality the citizens a Uniform Civil Code is part of the
Constitutional Scheme to bring about gender
* Prof. Menon has been the founder Vice Chancellor of two
of the leading National Law Universities at Bangalore and justice in a society which has for long practised
Kolkata and the Founder Director of the National Judicial
institutionalised discrimination, among others,
Academy at Bhopal. He is presently the Hony. Director
of the Kerala Bar Council M.K. Nambyar Academy for on grounds of sex/gender. To be able to evolve
Continuing Legal Education at Kochi.
a gender-just legal system, the State has been
1 Article 44, Directive Principle of State Policy, The
Constitution of India. enabled to make special provision in favour of
women which, the Constitution declared, will
65
not be treated as discrimination on ground of upheld the contention of the petitioner, a Syrian
sex otherwise prohibited by Article 15. Christian woman, to inherit ancestral property
equally with her male siblings.

Common Civil Code mired in The above practice of incremental reforms of


Controversies: personal laws through codification, legislative
amendments and judicial interpretations did
For different reasons different political not happen in any significant measure in the
parties which ruled the country have refrained case of Muslim personal law. It was left to the
from legislating a Common Civil Code despite Muslim Community to evolve a consensus for
the clear mandate of the Constitution. In the reforms. The so-called uncodified personal
1950s many aspects of Hindu personal law law regime gave an impression that people
got codified despite stiff opposition from of a particular religion are uniformly following
some sections of Hindus. However, the certain religion-ordained practices in relation
codified laws have not been totally free from to the institutions of marriage, inheritance,
discrimination against women. A series of divorce, maintenance, custody of children,
amendments followed to address the issue. adoption etc. The legitimisation of these
Court interventions at the instance of aggrieved customary practices developed under a
citizens further strengthened the idea of equal patriarchal framework in the name of personal
protection of the laws guaranteed to women laws actually helped institutionalisation of
under the Constitution. While it is still not discrimination against women. In fact, in
gender-just in all aspects of family relations varying degrees, personal laws of all religious
law, the Hindu Code did bring about a great groups discriminated against women which
deal of equality to Hindu women. Christian became visible when women got empowered
family laws which were mostly codified even with education, economic independence and
during the British period had discriminatory political participation.
provisions against Christian women. They
were challenged before the Courts which got
them reformed towards greater gender justice. Common Civil Code in the
In these matters judiciary has been weighing Constitution-making process:
so-called religious freedom against secular,
egalitarian human rights and the demands of Multi-culturalism, religious freedom and
social justice. An example of this approach can minority rights are beautifully blended in
be seen in the 1986 judgement of the Supreme the Indian Constitution with right to equality
Court in Mary Roy’s case2 in which the court not only for individuals but groups with-

2 Mary Roy v. State of Kerala 1986 SCR (1) 371 different identities. Group rights include self-
government rights for tribals, personal laws and
66
legal pluralism in family relations for religious women which, if allowed to continue, would
groups, and reservation rights for marginalised deny equality to women forever. Dr. Ambedkar
sections in legislatures, government jobs and was expressly surprised at the position taken
educational institutions. by Muslim members of the Assembly and said
that traditionally, even Muslims in different
However, while drafting the Constitution, parts of India followed Hindu customs in family
there was strong opposition in retaining religion relation at least till the Shariat Act, 1937 was
based personal laws which a large section of adopted. He clarified that even after adoption
the Constituent Assembly viewed as a threat to of a UCC by a future Indian Parliament, the law
national unity and a barrier to the commitment may allow those who want to continue under
to eliminate discriminatory socio-religious the pre-existing regime to do so. Dr. Ambedkar
practices prevailing against women, Dalits and was emphatic that religions should not be
backward classes. While Muslim leaders in the given vast, expansive jurisdiction to control all
Assembly demanded continuation of personal aspects of life.
laws on the ground of religious freedom
and minority rights, powerful leaders of the At the end as a compromise that was worked
Congress including Rajkumari Amrit Kaur, out UCC was placed as a Directive Principle of
Minoo Masani, Alladi Krishnaswamy Iyer, K.M. State Policy and personal laws were retained
Munshi and the Drafting Committee Chairman as part of religious freedom. However, there
Dr. B.R. Ambedkar vehemently argued for was no constitutional guarantee incorporated
Uniform Civil Code as a fundamental right of all for protection of personal laws as demanded
citizens. Mr. K.M. Munshi felt that social reform by the minorities. State could restrict the scope
required the State to intervene on the so-called of religious freedom upholding fundamental
religious freedom, a practice even Muslim right to equality and could take steps to create
Countries exercised against their minorities. a uniform civil code for all communities.
He was of the view that personal laws being
linked with religion is danger to the Unity of Despite the clear constitutional mandate,
the Country. He argued that the authority of successive governments and political parties
the State to legislate on family relations law have ignored their obligation and let the judiciary
of minorities was exercised by the Central do the job whenever concerned parties take
Legislature in 1937 when the Shariat Act was up the matter in court. During the seventy
enacted including Khoyas and Kutchi Memons years of the Indian Republic there has never
within its scope even though they were been any concreted move either from the part
following Hindu customs till then. He pointed of the State or of the Society to even debate
out that Hindu personal laws as interpreted by the issue involved or create a consensus for a
Manu and Yagnavalkya discriminated against secular Civil code for equal rights for women. It
is in this context, recent developments arising
67
from the Triple Talaq judgement3, the Times punishment. These personal laws may be
of India initiative in generating public opinion 4
treated as customs and rituals, and the freedom
and the reference from the Government to to practise what one believes on a personal
the Law Commission have to be analysed to basis is well recognized. But if any dispute
understand the prospect of a UCC in the not arises and the matter comes to the Court, those
too distant a future. disputes should be settled by an Indian Civil
Code as envisaged by our Constitution. This
Code will prescribe equal rights and obligations
Triple Talaq Judgement and and permit no discrimination or special rights
Movement for Gender Justice: on the basis of religion, caste, gender or sex.
This will ensure not only full freedom of religion
There was a time in Indian history when to the individual but also fulfil the Constitutional
Muslim clergy and the Muslim Personal Law goal of a Uniform Civil Code. But a detailed
Board questioned the authority of courts discussion of this subject cannot happen in the
presided by non-Muslim judges interpreting absence of a draft proposal, and for that, the
Muslim personal law on matter of divorce, government need to take the initiative.”
custody and marriage. Even today a section
of Muslims believe that non-believers are not Another commentator wanted Indian Muslim
entitled to administer Muslim personal law. to embrace liberal opinion6 “…in the matter of
Within the Muslim Community itself there personal laws and challenge the regressive view
are major differences on the law governing of the organizations like the Muslim Personal
a given issue in family relations as there are Law Board which object even the law on the
different schools of thought giving different Right of the Children to Free and Compulsory
interpretation to the text (Quran, Shariat). A Education Act (2009) on the ground that it will
former Union Minister5 suggests a way out in infringe on the Madrasa system of education.
the following words: The Board also supported child marriage and
justified Triple Talaq as well as the practise
“Personal laws are of civil nature and civil of Nikah Halala wherein a divorced Muslim
laws do not forbid any action on the pain of woman must sleep with another man before
she can remarry her first husband. One cannot
3 Muslim Women’s Quest for Equality & Ors Vs.
Jamait-Ulema-i-Hind & Ors Suo Moto Writ (C) No. 2 of counter Hindu fundamentalism by pandering
2015 dated 22 August 2017
to Muslim fundamentalism. Both need to be
4 Times of India newspaper from September 4, 2017
started publishing a series of articles by experts on the condemned and opposed.”
issues involved in making of a UCC. ÖNE NATION, ONE
CODE, http:times of india.india-times.com/uniform-civil-
code. It is indeed sad that a progressive liberal
5 Mr. Arif Mohamad Khan , “When the Constitution and
Religious Laws Collide”, Times of India, 10 September 6 Pavan K Verma, “Time for Muslims to Embrace
2017 Liberal Opinion”, Deccan Chronicle, 22nd October, 2017
68
democracy like India is unable to ensure equal illegal and unconstitutional.
rights for women and has to seek repeated
interventions of the highest Court of the land to The minority was written by Chief Justice
fight customs evolved in a patriarchal society. In J.S. Khehar and Justice Abdul Nazeer. Though
a recent judgement the Supreme Court7 ruled they found the practice sinful but not illegal, the
that sex between a man and his wife below 18 reason being that the Sunni Muslim accepted
years of age would be rape and the provision it as lawful and long practised as part of
in the Indian Penal code (Section 375(2)) which personal law. Being part of the personal law it
exonerated a husband in such circumstances is protected as religious freedom under Article
was unconstitutional. By this ruling, the 25 and can be interfered with only on grounds
Supreme Court established a uniform 18 year of public order, morality or health as provided
as age of consent and the age of marriage. in that Article. Therefore if Talaq-e-Biddat had
to be set aside as unconstitutional it can only
It was again the land mark judgement of be done under the conditions set out in Article
the Supreme Court in the Triple Talaq case8 25(2) through legislature. Accepting the views
which changed the mood of the nation vis-à- of the All India Muslim Personal Law Board,
vis the uniform Civil code and kindled hope for the minority judges said that it was not within
a gender-just family law for all citizens including the realm of judicial discretion to set aside a
Muslims. The petitioners in the case were five matter of faith and religion. They added that
divorced Muslim women who wanted the constitutional courts are obliged to protect and
Court to declare the Talaq-e-Biddat (instant enforce personal laws and not to find fault with
talaq) under which they were divorced, to it, a position that tends to make the task of
be declared violative of their right to equality, Parliament in enacting the UCC more difficult
liberty and dignity and therefore illegal and and leaving women suffer injustice under
unconstitutional. They argued that they were personal laws for ever.
deserted arbitrarily and unilaterally and were
left homeless without any reasonable cause The majority opinion given by the three judges
and that too, through letters, phone calls and in two separate judgement adopted different
uttering the word thrice at one go. Interestingly, logic to strike down the practice. Justices
the five judges of the Constitution Bench who Rohinton Nariman and U.U. Lalit got over the
heard the case belonged to five different Challenge through a technical argument based
religions. They gave three different judgements on Constitutional provision and interpretations.
with the majority declaring Talaq-e-Biddat They took the help of the Muslim Personal Law
(Shariat) Application Act, 1937 and found that
7 Independent thought vs. Union of India & Ors WP(C)
No. 382 of 2013 on 11 October 2017 Triple Talaq is recognised and enforced as part
8 Muslim Women’s Quest for Equality vs. Jamait-
of codified Muslim Personal law since 1937
Ulema-i-Hind &Ors Suo Moto Writ (C) No. 2 of 2015
dated 22 August 2017 and any pre-independence legislation not in
69
conformity with Part III (Fundamental Rights) legislative and executive action and is
of the Constitution shall to the extent of such distinct from the doctrine of discrimination.
inconsistency has to be treated as void under Given the fact that Triple Talaq is instant
Article 13 (1) of the Constitution. They thus and irrevocable, it is manifestly arbitrary.
brought down the issue to the narrow focus No attempts at reconciliation are possible.
of whether any of the fundamental rights of The marital tie can be broken capriciously
the petitioners are violated by the Shariat Act and whimsically. The Shariat Act which
provision in so far as it seeks to enforce Triple recognise it is the “law in force” under
Talaq as a rule of law in the Courts in India. Article 13 (1) and since it is violative of
fundamental right to equality it must be
The majority opinion decided the practice struck down to the extent that it recognises
unconstitutional on these distinct grounds: and enforces Triple Talaq. As the practice is
found void on the ground of arbitrariness,
(a) A practice does not acquire the sanction there is no need to examine it under the
of religion simply because it is permitted. test of discrimination.
What is protected under Article 25 are
essential religious practices without which (c) For the third judge in the majority, Justice
religion will lose its fundamental character. Kurian, Triple Talaq is against the basic
Non-essential practices are alterable and tenets of the Holy Quran as the text
do not form the core of religion. Applying allows Talaq only in extremely unavoidable
this test, the Court found that Talaq-e- circumstances and that too, if attempts
Biddat is only one form of Talaq permissible at reconciliation fail. What is Quaranically
in law, though considered to be sinful wrong cannot be legally right. So Triple
and therefore to be avoided. It is not an Talaq lacks legal sanctity and is not an
essential part of religion and therefore it integral part of religion. What is expressly
does not require to satisfy the test under declared to be impermissible cannot be
Article 25 (2) (b). valid by showing that it was practised for
long.
(b) Depending on a series of decisions rendered
earlier9, the majority opinion pointed out There are few things which open up the
that any action found to be arbitrary, and prospects of an UCC which follow from the
therefore unreasonable, would have to judgement of the apex court. These include:
be struck down as violative of right to
equality under Article 14. Arbitrariness (a) There is no bar in secular India in
doctrine contained in Article 14 can negate deciding the constitutionality of religious
practices in Islam by non-Muslims judges.
9 S.G. Jaisinghani vs. Union of India (1967) 2 SCR 703;
E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3; Theological issues can be ascertained by
Ajay Hasia vs. Schrawandi (1981) 1 SCC 722
70
judges by looking into religious texts and of religion is not violated if legislation on
interpretations. personal laws is brought forward for social
welfare and reforms.
(b) Whether a religious practice is followed
for long periods or is permissible under (g) Court judgement may not change
personal law is not conclusive proof of its easily social attitudes and traditions.
validity or legality. Nevertheless, it will enable an aggrieved
citizen to seek justice through court and
(c) ‘Personal law’ is “law in force” whether help mould public opinion on right direction.
codified or not, for purpose of Article
13 (1) and if it is violative of the right to (h) Even the minority judges (Chief Justice
equality, it can be struck down as void. The Khehar and Juctice Nazeer) after having
minority opinion tends to treat it as part of declared that Triple Talaq is protected by
fundamental right to religion and therefore the fundamental right to practise religion
beyond judicial scrutiny. and is beyond judicial examination, have
directed the Union of India to consider
(d) The key test for determining whether a law, appropriate legislation on the practise of
practice or executive action in relation to Triple Talaq and till then injuncted Muslim
matters of personal law is constitutional husbands from pronouncing Triple Talaq.
or not is whether it is unreasonable or
arbitrary. If it is found arbitrary it is violative
of the right to equality. Can UCC survive Democratic
Politics and Legal Pluralism:
(e) The protection given to religious freedom
under Article 25 extends only to practice Asking the question “why nobody is sincere
which are integral to religion. Non- about UCC.” an academic of repute wrote10:
essential practice are alterable. What is
non-essential practice can be answered “…Personal law is not personal at all;
by asking the question whether the said arguably it is not even law. It bestows rights
practice constitutes the core of religion to a community…. In India’s circumstances
and if altered will change the fundamental it pits the Hindu majority against the Muslim
character of the religion itself. minority. Few care to recognise that the crux
of the matter is gender inequality across the
(f) Parliament is entitled to codify personal law board….. From the days of the nationalist
of all communities to bring certainty and to movement, this controversy has unfolded in
make it gender-just to fulfil the requirements
10 Partha S. Ghosh, Times of India, One Nation One
of fundamental rights of citizen. Freedom code, Part 10

71
multifaceted ways. Sometimes it is Islam in building for policy making. The consensus
danger, at other it is Hinduism in danger; but, required in the matter of marriage, divorce,
barring the occasional intervention of women’s maintenance, custody, adoption and
rights groups, it is never ‘women in danger’. It inheritance if they violate fundamental rights
is man’s world. Unless this reality is challenged of citizen deny equality on the basis of sex
and altered, all talks about UCC is simply and gender. It does not necessarily mean
superficial, high voltage TV debate.” liquidating legal pluralism which will inevitably
continue to exist in a multicultural society. But
There is justifiable apprehension on the part religion cannot be mixed up with politics and
of different religious groups whether their group State to the detriment of individual rights and
identities will be obliterated by the enactment social justice.
of UCC. The minorities particularly fear how
their religious freedom and minority rights There can be many routes to evolve the
guaranteed by the Constitution can survive consensus and legislate on the subject.
after merging personal laws in a UCC. The Firstly, parliament can go ahead and enact
absences of an actual Draft UCC aggravate the a legislation (UCC) replacing personal laws
apprehensions and contribute to strengthening of different religions incorporating the best
the opposition from fundamentalist groups of practices (conducive to human rights) from
all religions. Public opinion is being shaped by all religions. Customary practices not violative
ignorance and vested interests take advantage of fundamental rights may still continue
of the situation. The Law Commission which is giving legal pluralism its legitimate space
asked by the Union Government to examine in the diversity that is India. Parliament can
the issue has a difficult job in hand. Meanwhile, make the law (UCC) optional for people for a
a group of law students as part of a law reform certain period of time or let those who want
competition launched by Mar Gregorios to continue with their personal law do so even
College of Law, Trivandrum has undertaken after the enactment of a UCC provided dispute
a year long exercise to gather the view of the arising from such personal laws are allowed to
Communities concerned, assemble the law be adjudicated through regular Courts on the
declared by the Court and legislature, and basis of the law of the land. This will be the
sought to reconcile them with the demands of extension of the Uniform Civil Code implied
Fundamental Rights and gender justice within under the Special Marriage Act. If matters of
a possible Draft UCC. This draft code is now marriage and divorce can thus be regulated
available in the public domain11. by a secular code, there is no reason why
the marriageable age, ground for divorce,
Democratic politics will demand consensus- conditions for divorce, ability to adopt and
11 Mar Gregorios College of Law, Trivandrum website rules of inheritance cannot be so regulated by
at www.mgcl.ac.in a Parliamentary legislation.
72 *******
Interpreting and shaping the
Transformative Constitution
of India
M. P. Singh*

Understanding a transformative life of that country. Interestingly, however, the


constitution: constitutions such as that of the United States or
France or that of the Soviet Union which followed
Generally speaking, constitutions of states revolutions were not labelled as transformative.
are made in times of crisis and in a constrained Even the post-colonial constitutions made
environment.1 There are rare exceptions to after WW II did not acquire the label of
the later premise such as that of the United transformative. They were generally perceived
Kingdom, whose constitution has evolved as structurist. The label “transformative” has
progressively through comparatively small become part of the constitutional discourse
political and generally peaceful demands in since the making of the Constitution of South
course of long history of that country.2 This is Africa, 1996.3 The events preceding the making
why the constitution of a country is heralded of the Constitution of South Africa such as the
as a fresh beginning in its life despite the fact existence and strict enforcement of apartheid,
that it may draw a lot of sustenance from the inhuman and crude suppression of any political
country’s past. To that extent the constitution activity against that regime despite its persistent
of every country is a transformative event in the and almost universal condemnation by the
world community, an almost sudden turn in the
* Chancellor, Central University of Haryana, Professor
Emeritus, University of Delhi. Currently, Chair Professor, policy of the then South African regime towards
Centre for Comparative Law, National Law University of
the beginning of the last decade of the last
Delhi.
The paper is a revised and updated version of a millennium, release of Nelson Mandela from his
paper written some time back. It appeared in Chinese long solitary incarceration, holding of elections
Yearbook of Constitutional Law 2014, which is not
read anywhere outside China because of its Chinese and making of the new constitution based on
medium, while it is written primarily for Indian readers. principles of universal suffrage and human rights
1 Donald L. Horowitz, Constitution-Making: A Process
3 See, Karl Klare, Legal culture and transformative
Filled with Constraint, 12 Review of Constitutional
constitutionalism, SAJHR 146 (1998) followed by many
Studies 1 (2006).
writings referring to it. See, T. Roux, Transformative
2 Perhaps the only major exception was the Glorious
constitutionalism and the best interpretation of theSouth
revolution of 1688-89. See for details Harold J. Berman,
African Constitution: distinction without a difference?
Law And Revolution: The Formation of the Western
(2009) 20 Stellenbosch L. Rev.258-285.
Legal Tradition (Harvard University Press).
73
including social and economic rights, were Later he also explains it as a “post-liberal
a series of historic events celebrated all over constitution, one that may plausibly be read
the world. The background to and the events not only as open to but committed to large
associated with the making of the Constitution scale, egalitarian social transformation.”5
of South Africa were so momentous that the
making of the Constitution and its refreshing In a recent project on transformative
contents evoked a euphoria strong enough constitutionalism in Brazil, India and South
to assigning a new label to the Constitution. Africa, Baxi seems to explain the concept
Therefore, it should not be a surprise if the of transformative constitution “in terms of
expression “transformative” was coined in its ‘recognition of human rights, democracy
context and was brought into the domain of and peaceful co-existence and development
constitutional discourse. opportunities’ ”6 to which one of the participants
from South Africa expresses his disagreement
Using, perhaps again for the first time, in an because such a description of transformative
incisive and substantial writing on the nature of constitution implies condemnation of
the South African Constitution Klare explains European liberal constitutional traditions which
transformative constitution as follows: contained all these features and adds that
even transformative constitutions are generally
By transformative constitutionalism I mean a liberal, non-conservative and democratic.7
long-term project of constitutional enactment,
interpretation, and enforcement committed Numerous scholars have responded to Klare
(not in isolation, of course, but in a historical expressing their agreement or disagreement
context of conducive political developments) on issues taken up by him in his paper, but
to transforming a country’s political and apparently nobody seems to disagree with his
social institutions and power relationships in
5 P. 150-151. Cf. V. Sripati, Constitutionalism in
a democratic, participatory, and egalitarian India and South Africa: A Comparative Study from a
direction. Transformative constitutionalism Human Rights Perspective, 16 Tul. J. Int'l & Comp.
L. 49 at 54 (2007-2008): “The overarching thematic
connotes an enterprise of inducing large-scale argument of this Article is that a constitution may play
social change through non-violent political a transformative role in advancing constitutionalism in
four critical ways: (1) by defining the nature of the state,
processes grounded in law. I have in mind a including a broad equality provision; (2) by addressing
transformation vast enough to be inadequately social and societal oppression and past injustices; (3)
by defining property and land rights; and (4) by defining
captured by the phrase ‘reform,’ but something social and economic rights.”
short of or different from ‘revolution’ in any 6 U. Baxi, Preliminary notes on transformative
constitutionalism, in O. Vilhena, U. Baxi & F. Viljoen
traditional sense of the word.4 (eds.), Transformative Constitutionalism: comparing
the apex courts of Brazil, India and South Africa, 22
(Pretoria University Law Press & National Law University
Delhi Press, 2014).
4 P. 150.
7 T. Roux, A brief response to Professor Baxi, in the
collection mentioned in the preceding note, 48 at 51.
74
description of the South African Constitution Constitution of South Africa as transformative
as transformative. 8
The agreement or constitution, the label has been extended to
disagreement is on the scope and application other constitutions also which have similar
of the concept of transformative constitution features. The book referred to above which
and to its interpretation and application. Klare brackets the constitutions of India and Brazil
would like the judges to interpret and apply along with the Constitution of South Africa is
the Constitution with a clear understanding one of such examples.9 The extension of the
that it was made with a view to transforming label is not misplaced because though not
the grim social, economic, political and other all Constitutions may be having the same
realities of life caused by the colonial past, and background and provisions as the Constitution
more so by the policy of apartheid. Such an of South Africa, they may have similar
understanding will require the judges to depart background and provisions. In the light of their
from the traditional techniques of interpreting background not unexpectedly they may have
the Constitution and laws as a continuity of not made exactly the same provisions as the
the legal system proceeding on the basis Constitution of South Africa does, so long as
of precedents. In calling the Constitution they share the background and make provisions
post-liberal he also expected the judges to which are aimed at wide ranging social and
subordinate liberty and property to equality political changes in their respective societies,
which is the highest value and goal to be they may justifiably be called transformative
achieved by the Constitution. For the realisation constitutions. As we noticed above, the label or
of these goals the judges must invent and adjective “transformative” was first associated
apply new tools and techniques different from with the Constitution of South Africa, it was
the ones used in pre-Constitution time. They not one of the adjectives associated with
are expected to do so because departing from those constitutions. Therefore, speaking for
the common law tradition of the same courts the Constitution of India, I can say that in the
interpreting the constitution that interpreted light of its background, its process of formation
and applied all other laws too, the Constitution and ultimately in its architecture and details it
of South Africa created a separate court, i.e. a is definitely a transformative Constitution.10
Constitutional Court exclusively bestowed with Accordingly, I have no hesitation in including
the responsibility of interpreting and applying it among the transformative constitutions. The
the Constitution. assertion will be justified by the discussion that
follows. The important issue for consideration
It seems that after labelling of the
9 See, fn 5 above.
10 This premise has found voice in some other
8 For the citation of these writings see fn 1 in
writings also, See, for example, Sandipto Das Gupta,
T.Roux, Transformative constitutionalism and the
A Language Which is Foreign To Us- Continuities and
best interpretation of the South African Constitution:
Anxieties in the Making of the Indian Constitution,
Distinction without a difference? 20 Stellenbosch Law
Comparative Studies of South Asia, Africa and the
Review 258 (2009).
Middle East, Vol. 34, No. 2, 2014.
75
is whether the transformative provisions of the a constitution for India ensuring participation
Constitution have been worked out in practice of Indians in the formation and working of the
on the lines of the constitutional text. government with a guarantee of rights similar
to those enjoyed by British subjects in England.
II. Indian Constitution as
A blueprint to that effect was presented to the
transformative constitution:
British government in the Constitution of India
Following Klare’s description of Bill, 1895.11 In pursuance of persistent demand
transformative constitutionalism as a long-term from the INC, the government conceded some
project of constitution-making, interpretation, of the demands in the constitutional documents
and enforcement committed to transforming of 1909 and 1919. The latter devised some
a country’s political and social institutions and sort of federal arrangement conceding partial
power relationships successively. participation of Indians in the provincial
governments. As these arrangements failed
A. Preparation and making of India’s to satisfy their expectations, they continued to
Constitution: persist on reforms in such proposals as Ms.
Beasent’s Commonwealth of India Bill of 192512
The background to the constitution of in which they also repeated their demand for
an ancient and unbroken civilization and the guarantee of basic rights including civil and
culture like that of India cannot be completely political as well as social and economic rights
detached from its at least known past which followed by Motilal Nehru report in 192813 and
has admittedly influenced making of some the Karachi Resolution in 1931, the last of which
of the provisions of the Constitution, but it included a much more comprehensive list of
is primarily a modern project in response social and economic rights along with civil and
to mainly the political developments during political rights.14 These proposals played, says
approximately a century preceding its making. Granville Austin “a vital share in shaping India’s
It is during this period that realizing the design future Constitution, and the provisions did in
of the formally trading East India Company to fact become the spiritual and in some cases
colonize the country for the British Empire the the direct, antecedents of the DPs [Directive
people of India made an unsuccessful armed Principles of State Policy].”15 By this time the
attempt in 1857 to oust it. Following this defeat
11 For the text of the Bill see, B. Shiva Rao (ed.), The
the British government replaced the ailing and Framing of India’s Constitution, vol. I, p. 5 (IIPA, New
Delhi, 1966). The volume contains record of most of the
ousted Moghul Empire by British Empire in
events preceding the making the process of making the
1858. Nearly three decades later in 1885 the Constitution of India.
12 For the text of the Bill see, id. at 43.
subjugated intelligentsia of the country founded
13 For the text of the Report see, id at 58.
the Indian National Congress (INC) to negotiate 14 For the text of Resolution see, M. Gwyer & A.
Appadorai, Speeches and Documents on the Indian
political issues with the British rulers. One of their
Constitution 1921 – 47, Vol. I, 248 (OUP, 1957).
main and early demands was establishment of 15 G. Austin, The Indian Constitution, 56 (OUP, 1966).

76
people also started demanding independence advice of Gandhi himself. Even though elected
from the British rule and, therefore, even the indirectly, CA was a highly representative body
constitutional Act of 1935, which sought to of the people because almost all its leaders
fulfill the demands of the people of India, had closely worked with the people and
could not satisfy them inter-alia for the reason knew well their problems and expectations.16
that it did not have a Bill of Rights as well as Though most of the prominent members of
self-rule at the Centre in an unrealized and CA were also members of the government,
unrealizable federal structure. The struggle for to maintain dignity and independence of CA
independence from British rule was intensified they never mixed their two capacities except
during the WW II and continued beyond until by influencing the making of the constitutional
the British Prime Minister made a statement in provisions by their practical experience of
Parliament on February 20, 1947 to hand over governance. Some of its main leaders like
power into Indian hands latest by June 1948. Nehru, Patel, Prasad and Azad were practicing
But by a later announcement on June 3 the democrats and representative of masses and,
Prime Minister advanced the date for transfer therefore, they brought a sense of unity among
to August 1947 with a division of the country the members of CA to produce a constitution
into India and Pakistan and thus India secured in the interest of all four hundred million people
its independence on August 15, 1947. of India.17

Prior to the declaration of independence, After settling some of the preliminary


based on a plan announced on May 16, 1946 issues the CA met on 9 December 1946.
by a Cabinet Mission of the British government Expressing their distress on the absence of
a Constituent Assembly comprising Indian Muslim members from those territories which
members, mostly indirectly elected but a few they were demanding for the formation of a
of them also nominated, was in place by the separate independent state of Pakistan, the
end of September. A notable feature of the assembled members proceeded to transact
Assembly was its inclusiveness even though the business of the Assembly. The most
the vast majority of its members belonged to important business transacted in this meeting
INC. INC ensured inclusion of all the prominent was the introduction on 13 December 1946
leaders of different political formations and of the Objectives Resolution on the making of
sections of the society including women, the future constitution of India. Excluding those
minorities, depressed classes or dalits as well parts of the Resolution which became irrelevant
as tribals or aboriginals so much so that Dr. after declaration of independence and partition
Ambedkar, a staunch critic, if not opponent,
16 They were not elites like the makers of the US
of Gandhi was specially brought into CA Constitution who were all property and slave owners
white males as Sripati seems to be assuming. See Sripati
and was later appointed Chairperson of the
fn. 4 above.
Constitution Drafting Committee of CA on the 17 For details on the formation and nature of CA see,
id. 8 ff.
77
of the country, the Resolution read as follows:18 England acting on the advice and consent of
British Parliament attributed the making of the
(1) This Constituent Assembly declares its Constitution to the people of a sovereign and
firm and solemn resolve to proclaim India as an independent India,20 and assured justice and
Independent Sovereign Republic and to draw rights to all the people with special guarantees
up for her future governance a Constitution; to minorities, backward and depressed classes
as well as tribal communities and areas, which
… the British Parliament declined to concede. In
defence of the Resolution Nehru alluded “to the
(4) wherein all power and authority of the 5,000 years India’s history” which assured India
Sovereign Independent India, its constituent a great future.21 Referring to some revolutions in
parts and organs of government, are derived the remote past and in USA, France and Soviet
from the people; and Union and his faith in socialism which he did
not press for being included in the Resolution,
(5) wherein shall be guaranteed and secured he wished a constitution which could take
to all the people of India justice, social, care of the interests of all people of India.22
economic and political; equality of status, of In a longer defence Radhakrishnan referring
opportunity and before the law; freedom of to the above three revolutions expressed the
thought, expression, belief, faith, worship, “wish to bring a fundamental alteration in the
vocation, association and action subject to law structure of Indian society” and “to gain the
and public morality; and revolutionary ends by methods which are
unusual so far as past history is concerned.”23
(6) wherein adequate safeguards shall be The object was to “establish Swaraj for all the
provided for minorities, backward and tribal Indian people… where no individual will suffer
areas, and depressed and other backward from undeserved want” and “where no group
classes. will be thwarted in the development of its
cultural life.”24 Speaking of “a socio-economic
… .19 revolution” that the Constitution was expected
to bring, he also clarified that “apart from re-
Thus well before the declaration of making the material conditions, we have to
independence the CA, unlike the previous safeguard the liberty of the human spirit.”25
constitutional enactments of 1919 and
20 For comparison see, the preamble and enacting
1935, spoke not in the name of the King of clause respectively of the Government of India Acts of
1919 and 1935.
18 Constitutent Assembly Debates of India, Volume 1, 21 Id, n. 15 at 6.
Part 5, Available at “http://parliamentofindia.nic.in/ls/ 22 Id at 8.
debates/vol1p5.htm” (Last visited April 14, 2015). 23 Id, n. at 12.
19 For the text of the Resolution, see, Shiva Rao, above 24 Ibid.
n. vol. II, p. 3. 25 Id. at 17.

78
He also alluded to India’s ancient traditions of SOCIALIST” after “SOVEREIGN” and before
republicanism. With these two speeches the
26
“DEMOCRATIC” and “and integrity” after “unity”
debate on the Resolution was concluded by its and before “the Nation”, it remains as adopted
unanimous adoption without any amendment originally on 26 November 1949. The Preamble
or change on 22 January 1947. Thus the attributes the origin of the Constitution to the
Resolution made it plain that though the people of India and not to any other human
Constitution is expected to bring revolutionary or divine authority. The people of India are the
changes in Indian society, it will not resort to ones who have resolved to constitute India
Russian model even though it rejected age old into a “SOVEREIGN SOCIALIST SECULAR
monarchy. These goals clearly satisfied Klare’s DEMOCRATIC REPUBLIC” and to secure to
concept of transformative constitution. its citizens JUSTICE, social, economic and
political; LIBERTY of thought, expression,
The Resolution became the guiding mantra belief, faith and worship; EQUALITY of status
at every step for the making of the Constitution and opportunity; and to promote among
and finally became its Preamble with the them FRATERNITY assuring the dignity of the
addition of democracy, fraternity and human individual and the unity and integrity of the
dignity which were all incorporated in full nation”. Special attention may be paid to the
measure in the Constitution. Closely examining sequence of different values in the Preamble
the proceedings of CA from the beginning to which places “JUSTICE” above all others
end Austin finds that “The theme of social including freedom and equality and which
revolution runs throughout the proceedings is repeated and reinforced in the Directive
and documents of the Assembly.”27 principles of State Policy. Within justice also
social justice is foremost. Special attention
Transformative provisions of the has been drawn to the placing of justice in the
Constitution of India: Preamble at least by one keen author on the
background of India’s Constitution.28
On the structural aspects of the state and
governments the Constitution may have to Concretising and operationalising these
some extent followed the Government of India goals the Constitution defines citizenship
Act, 1935 but as regards its flesh and blood, and uniformly converts immensely diverse
brain and respiration from the beginning to the people of India from subjects to citizens.29 It
end are entirely new and inspired its background confers suitably crafted fundamental rights on
briefly alluded above. Its Preamble represents all citizens and with a few minor exceptions
what it aspires to achieve. Subject to addition
by the 42nd Amendment in 1976 of “SECULAR 28 For details see, M. Mukherjee, India in the Shadows
of Empire, 185 ff& 199 ff (OUP, 2010, Paperback, 2012).
26 Id. at 15. Also see, Art. 38 (1).
27 At xvii. 29 Part II.
79
also on non-citizens.30 They include the right institutions are open to all citizens, religious and
to equality and non-discrimination on grounds linguistic minorities have the right to establish
of race, religion, caste, sex or place of birth and administer educational institutions of their
in all matters including state employment.31 choice.40Besides, any section of the citizens
Most importantly it abolishes age-old social residing in India having a distinct language,
evil of “Untouchability” and forbids its practice script or culture of its own has the right to
in any form.32 The state is prohibited from conserve it.41For ensuring compliance with
conferring any title on any person and the these rights the right to approach the Supreme
citizens are also prohibited from accepting Court is also guaranteed.42
any title from any foreign state.33 Subject to
reasonable restrictions on specified grounds all Notable features of these rights are that
citizens can exercise freedom of speech and some of them expressly and others impliedly
expression, assembly, associations and unions, are available not only against the state or
movement, residence and settlement, and of public authorities but also against the private
profession, occupation, trade or business. No persons or bodies;43 some of them make
new offences can be created or punishments special provisions for women and children44
enhanced retrospectively.34 Double jeopardy while others make similar provisions for weaker
and self-incrimination are prohibited.35 No sections of the society designated as socially
person can be deprived of his life or liberty and educationally backward classes or simply
without due procedure established by law and backward classes, and Scheduled Castes
persons accused of any offence are entitled and Scheduled Tribes45 while still others make
to certain safeguards.36 All citizens between similar provisions for minorities and certain
the age of six to fourteen have the right to free sections of the society.46
and compulsory education.37 Traffic in human
beings, forced labour and employment of Moving further, the Constitution sets certain
children under fourteen in hazardous industries directive principles of state policy which
is prohibited.38 Freedom of religion is guaranteed though not enforceable in the courts are still
to all persons and religious denominations.39 “fundamental in the governance of the country”
While all state funded or aided educational and the state, which the Supreme Court has
30 Part III. Some of the exceptions, for example, the on occasions held to include courts too,47 is
ones in Article 19 (1) may be covered in Article 21 which
applies to all people. 40 Arts. 29 (2) & 30.
31 Arts. 15 & 16. 41 Art. 29 (1).
32 Art. 17. 42 Art. 32.
33 Art. 18. 43 E.g., Arts. 15 (2), 16 (5), 17, 18, 19, 21, 23, 24, 25,
34 Art. 19. 26, 28, 29, 30. For details, see, M.P. Singh, cited above
35 Art. 20. in fn 44.
36 Arts. 21 & 22. 44 E.g., Arts. 15 (3), 21-A & 24.
37 Art. 21-A. 45 E.g., Arts. 15 (4) & (5), 16 (4), (4-A) & (4-B), 19 (5),
38 Arts. 23 & 24. 46 E.g., Arts. 25 Explanation I, 29 (1) & 30.
39 Arts. 25 & 26. 47 See, e.g., Mathew J. in Kesavananda Bharati v. State
80
duty bound to apply them in the making of the standards of living and improvement of public
laws.48
They include promotion of the welfare health;58 organization of agriculture and animal
of the people “by securing and protecting as husbandry;59 and protection of environment,
effectively as it may a social order in which forests and wild life.60
justice, social, economic and political, shall
inform all institutions of the national life”;49 The Constitution also provides for certain
minimization of inequalities among individuals duties of the citizens which include abiding by
as well as groups;50 equal means of livelihood the Constitution and respecting its ideals and
and equal pay for equal work for women institutions; cherishing and following the ideals
and men; ownership and control of material that inspired national struggle for freedom;
resources for the common good; avoidance upholding and protecting the sovereignty, unity
of concentration of wealth and means and integrity of India; defending the country and
of production to the common detriment; rendering national service when called upon
protection of workers and children and aged to do so; promoting harmony and the spirit
against abuse as well as special care for of common brotherhood amongst all persons
children;51 equal justice and free legal aid to all;52 and renouncing of practices derogatory to
right to work, education and public assistance the dignity of women; valuing and preserving
in cases of unemployment, old age, sickness, the rich heritage of our composite culture;
disablement and other cases of undeserved protecting environment and having compassion
want;53 humane conditions of work and for living creatures; developing scientific temper,
maternity relief;54 living wages and conditions of humanism and the spirit of inquiry and reform;
work ensuring decent life for workers and their safeguarding of public property and abjuring
participation in management;55 early childhood of violence; striving towards excellence in all
care and provision for education for children up spheres of activity; and providing opportunities
to the age of six;56 promotion of educational for education to one’s child or ward between
and economic interests of Scheduled Castes the age of six and fourteen.61
and Scheduled Tribes and other weaker
sections;57 raising of levels of nutrition and Notable features of the rights, directives
and the duties are that they express special
of Kerala, AIR 1973 SC 1461 & State of Kerala v. N.M.
Thomas, AIR SC 490, 515 and Unni Krishnan v. State of concern for women, children and weaker
AP, (1993) 1 SCC 645.
sections of the society, prominently among
48 Art. 37.
49 Art. 3 (1). them socially and educationally backward
50 Art. 38(2).
classes, Scheduled Castes and Scheduled
51 Art. 39.
52 Art. 39-A. Tribes and, for some specific purposes, also
53 Art. 41.
54 Art. 42. 58 Art. 47.
55 Arts. 43 & 43-A. 59 Art. 48.
56 Art. 45. 60 Art. 48-A.
57 Art. 46. 61 Art. 51-A.
81
the minorities. These concerns are presumed and supports the transformative nature of
to inform all our laws and legal institutions the Constitution which not only places all
either expressly or impliedly. citizens at the same level but also takes due
note of the age old social, economic, political
These concerns are further supported by and other kinds of disabilities and practices
the provisions of the Constitution in Parts that have been part of the Indian society
IX, IX-A and IX-B relating respectively to since time immemorial and have caused as
Panchayats, municipalities and cooperative well as sustained gross inequality to certain
societies in which special provisions have been identifiable classes and sections of the society.
made for the representation of women, SCs The Constitution expects and obliges the state
and STs62 and also in Part XVI which makes to take special, legislative and administrative
similar provisions for the representation of the measures to remove their age old shackles
SCs, STs and a minority community – Anglo- and disabilities and bring them at par with the
Indians –for representation in the national rest of the society through such measures. This
Parliament and State Legislatures.63 Additional definitely is the most outstanding aspect of the
provisions have been made in this part for the transformative character of the Constitution.
representation of SCs and STs in State services Perhaps in this regard the Constitution of India
and also for a minority for such representation has taken a lead over all other constitutions
in some services and for special grants for made until then.
education.64 The Constitution also provides for
special commissions to look after the interests Another notable transformative feature of
of the SCs, STs and backward classes.65 the Constitution is introduction of democracy
Special provisions for SCs, STs and backward based on universal adult suffrage to elect
classes, especially for STs, are scattered all people’s representatives for the Parliament
over the Constitution including its Schedules.66 and for the State legislatures out of whom
Some safeguards are also provided for the executive governments are created at the
linguistic minorities.67 national and State levels. To these bodies local
self-governments at the municipal and village
The multiplicity of special provisions for levels as well as cooperative societies have
certain classes within the society amply proves also been added by subsequent amendments.
Right to be an elector was extended slowly
62 Arts. 243-D, 243-T & 243-Z.
and successively on educational, property, sex
63 Arts. 330 – 333,
64 Arts. 335, 336 & 337. The special provisions for the and other considerations until the recognition
Anglo-Indian community in Arts. 336 and 337 have,
of adult suffrage even in the oldest and the
however, ceased to apply since 26 Jan. 1960.
65 Arts. 338, 338-A & 340. most robust democracies such as of the
66 Art. 164 (1) Proviso, Part X, Arts. 339, 371-A, 371-
United Kingdom or the United States. Even in
B, 371-G, 371-H, & 5th& 6th Schedules.
67 Art. 350-A & 350-B. India until independence it was restricted on
82
educational, property and other considerations Austin again notes that out of the several
to less than one fourth of the adult population. goals which the Constitution wanted to
But the Constitution extended it to every adult achieve “social revolution” was transcendent
– initially of 21 years and above and of 18 years among them because it would fulfill “the basic
since 1989 without regard to religion, race, needs of the common man, and … bring about
caste, sex or any of them.68 In course of time fundamental changes in the structure of Indian
this right has proved to be the most effective society – a society with a long and glorious
weapon in making the social, economic and cultural tradition, but greatly in need … of a
political changes envisaged by the Constitution. powerful infusion of energy and rationalism.”71
Communities and the sections of the people,
who remained excluded from the main stream On similar lines but without reference to
of life of the country since time immemorial, social revolution or transformation Ananya
have been raised to the level of ruling classes Vajpeyi looks at the Constitution as a protective
or classes that equally share political power. cover for all Indians:
They have not yet all acquired equal social
and economic status with the former dominant “This new India – whose key text, the
classes, but they are on the road to break the Constitution of 1950, Ambedkar shepherded
traditional hierarchical order of the country that into its inaugural form – had to be imagined
impoverished them for ages. on the basis of a kind of selfhood that
would appeal as much to Hindus as to
Examining these provisions and their minorities, to upper castes as to Sudras
background Granville Austin discovered two and Untouchables, and to those in the
revolutions in India since the end of WW I, the mainstream as to those on the margins.”72
national and the social. “With independence,”
he says “the national revolution will be Transformative constitution in
completed, but the social revolution must go” 69
practice:
and that:
i. Initial twenty-five years:
The Indian Constitution is first and foremost a
social document. The majority of its provisions The foregoing transformation envisaged
are either directly aimed at furthering the goals and provided for in the text of the Constitution
of the social revolution or attempt to foster could not be expected to be self-operative.
this revolution by establishing the conditions
71 Id. at xvii. The other two goals of the same level
necessary for its achievement.70 were national unity and stability and democracy and
the three together constituted a seamless web being
68 Arts. 325 & 326. interdependent.
69 G. Austin, cited above, p. 26. 72 A. Vajpeyi, Righteous Republic The political
70 Id. at 50. Emphasis supplied. Foundations of Modern India, 209 (Harvard Uni. Press,
2012).
83
It could be realized only through appropriate ensure that the courts would be independent,
institutions supported by the people and devoting more hours of debate to this subject
occupied by persons well aware and supportive than to almost any other aspect of the
of, if not committed to, the constitutional provisions. If the beacon of the judiciary was
goals. Therefore, the Constitution provides to remain bright, the court must be above
for lawmakers or legislatures elected for five reproach, free from coercion and from political
years at a time by all the citizens of eighteen influence.76
years and above.73 Leaders of the majority in
the legislature constitute the executive. This Accordingly, the Constitution makes
arrangement initially made at the Central and elaborate provisions conferring wide powers
State level has with some modifications also of judicial review supported by adequate
been extended even to municipal and village provisions for enforcement of their orders. It
levels as well as cooperative societies.74 Ever also ensures the independence of the judiciary
since the first election at the Centre and the in every possible way its makers could
States in 1952, they have consistently been conceive.77 Out of the three levels of judiciary
held with occasional variations permissible – the Supreme Court, the High Courts and the
under the Constitution. subordinate or district courts - the Supreme
Court is considered to be the beacon light
It also provides for an independent judiciary to guide the ship of the Constitution and all
equipped with the power of judicial review that which was expected to be achieved
ensuring compliance with the Constitution through it. Therefore, unprecedented powers
and the laws made in pursuance of it by the are conferred upon it which perhaps no other
legislature and the executive. Though the highest court in the world has or exercises.
judiciary is said to be the weakest or the Apart from its other vast jurisdictions it may be
least dangerous out of the three branches approached as a matter of fundamental right
of the government, the Constitution of India to enforce any of the FRs guaranteed in the
conceives it “an arm of the social revolution, Constitution. Such FRs included even those
upholding the equality [and other rights] that DPs which have been incorporated into FRs
Indians had longed for during colonial days but by its own interpretation of the Constitution.
had not gained.”75 For that reason: The High Courts also have the vast powers of
judicial review and of enforcing FRs through
The Assembly went to great lengths to appropriate orders and directions including the
power to issue writs. The subordinate courts
73 Art. 327. Initially the voting age was 21 years which
was lowered to 18 years by the Constitution (61st do not have the power of judicial review of
Amendment) Act, 1988 w.e.f. 28.3.1989.
74 See, Parts IX, IX-A & IX-B, of which the first two were 76 164 – 165.
introduced in 1993 while the last one was introduced in 77 On the independence of judiciary see M.P. Singh,
2011. Securing the Independence of the Judiciary: The Indian
75 164. Experience.
84
legislation and of issuing writs but they have the common law principles protective of property
power to interpret and apply and enforce the rights. As the judges were expected to remain
Constitution as interpreted by the High Courts insulated from the politics in the country, they
or the Supreme Court. Ever since the inception may have ignored, if not seen with disdain,
of the Constitution the Supreme Court and the political and social developments in the
the HCs have exercised their powers for the country. Most of them came from families
enforcement of FRs by devising appropriate which had little exposure to social realities in
procedures and remedies. the country and were educated in England and
its Bars or in metropolis or Presidency Towns
In spite of such elaborate and effective of Bombay, Madras or Calcutta. Perhaps in
arrangements the Constitution has not yet their zeal to keep judiciary insulated from any
made adequate progress in the realization of kind of political influence, the Constitution
its goal of social transformation. Of course it makers, unlike the makers of many post
could educate and train people in democratic WW II constitutions which provided for a
processes and give them the confidence of separate court exclusively for constitutional
being citizens of an independent country in matters,78 they made the Supreme Court part
which they could decide their fate as they of the judiciary dealing with all other matters
wished, but by and large social and economic too on the lines other former British colonies
arrangements did not change on expected including Unites States, Australia and Canada.
lines. There could be any number of reasons The judges in countries which have exclusive
for that, but let us confine to constitutional constitutional courts are appointed on different
issues within the domain of law. considerations by a different procedure and for
a definite period without a life term. Experience
The first and foremost reason that I see as worldwide proves that such courts are much
a student of law was lack of understanding of more effective in enforcing the social and
the transformative nature of the Constitution economic rights than the traditional courts
on the part of our courts both at the level of consisting of judges with security of tenure for
the High Courts and the Supreme Court in life or until the age of retirement.79 This was
the first two formative decades of the life of not conceived and done by our Constitution
the Constitution. Unlike the legislatures and makers and, therefore, our judges in the
the executives created under the Constitution Supreme Court are also appointed on similar
comprising persons who had participated lines as the judges in the High Courts except
in the national struggle and in the making of
78 See, e.g., the Constitutional Court in Germany and
the Constitution, the members of the judiciary other European countries. A recent example of such a
including the Supreme Court came from the court in a common law jurisdiction is the Constitutional
Court of South Africa.
existing judiciary used to serving a colonial 79 Mark Tushnet, Weak Courts, Strong Rights: Judicial
state and its laws based presumably on Review and Social Welfare Rights in Comparative
Constitutional Law (Princeton, 2008).
85
that a jurist may be appointed to the Supreme measure in a predominantly agricultural
Court, which has not yet happened. society, were declared unconstitutional by the
High Courts and also by the Supreme Court.81
If the Constitution makers had given enough Similarly when for similar reasons appropriate
thought to the aspect that a transformative measures were taken against the industries
constitution or constitution that aims at social or land was acquired for public purpose, the
revolution would require a different judiciary courts invalidated those laws or measures too.82
for the interpretation and application of the Even reservation in educational institutions and
constitution, perhaps the results would have state jobs for the socially and educationally
been different. If, for example, an Ambedkar or backward classes of SCs and STs was not
Gobind Ballabh Pant or Sir B.N. Rau or any seen sympathetically by the Courts. This led
of the several other prominent lawyers in CA to the successive amendments, some of them
or outside had been appointed the first Chief with far-reaching consequences.83 The process
Justice of India, the results would have been continued on issues such as acquisition of
tremendously different because these were property, land reforms, nationalization of
the persons who knew the object and purpose industries and banks and abolition of Privy
of the Constitution and its various provisions Purses which the Supreme Court invalidated
and would have given them that meaning and and the Parliament overturned them through
effect.80 successive amendments of the Constitution.84
After the initial failure to challenge the
Consequently, when the Constitution came
81 See, e.g., Kameswar Singh v. State of Bihar AIR
for interpretation and application before the
1951 Pat. 91; State of Bihar v. Kameswar Singh AIR
judges at the High Courts and in appeal or 1952 SC 252; Dwarkadas Srinivas v. Solapur Spg. And
Wvg. Co. Ltd. AIR 1954 SC 119; Saghir Ahmed v. State
otherwise at the Supreme Court in matters
of U.P. AIR 1954 SC 728; and a number of other cases.
that aimed at bringing the social and economic 82 Consequently drastic amendments had to be made
in the Constitution within a year of its making, which
transformation envisaged and incorporated in
amendments were, however, upheld by the Supreme
it by its makers, they invalidated them on pre- Court in Shankari Prasad v. Union of India AIR 1951 SC
455.
Constitution principles or notions of law without
83 For example, The Constitution (First Amendment)
realizing that the Constitution was intended to Act, 1951; The Constitution (Fourth Amendment) Act,
1955; The Constitution (Seventeenth Amendment) Act,
change that law and legal position. Therefore,
1964; The Constitution (Twenty fifth Amendment) Act,
zamindari abolition and land reforms laws 1971; The Constitution (Twenty Ninth Amendment) Act,
1972; The Constitution (Thirty Fourth Amendment) Act,
of different States, which were made after a
1974; The Constitution (Thirty Ninth Amendment) Act,
long demand and struggle and were definitely 1975; The Constitution (Fourtieth Amendment) Act,
1976; The Constitution (Forty Second Amendment) Act,
an important and extensive socio-economic
1976; The Constitution (Forty Third Amendment) Act,
1977; The Constitution (Forty Fourth Amendment) Act,
80 Submissions made before the Swaran Singh 1978.
Committee by Prof. P.K. Tripathi (1976) 2 SCC (Jour) 29 84 See the previous note and Madhav Rao Scindia v.
at p.41. Union of India AIR 1971 SC 530.

86
amendments, some hope for the success of one hand political campaign was started for
such challenge was created in another property the removal of the then Prime Minister and on
rights case85 and finally again in a property the other hand her election to Lok Sabha (lower
rights case the Court denied Parliament the house of Parliament) was invalidated by one of
power to abridge the FRs in future which led to the High Courts against which the Supreme
wide ranging amendments to nullify the effect of Court gave only a qualified stay leading to the
that decision.86 But a few years later in another declaration of Emergency (internal). During the
challenge on property right the Court laid down Emergency while almost all opposition leaders,
the general proposition that the basic structure including members of Parliament, were behind
of the Constitution was beyond the power the bars the Constitution went through various
of amendment provided in the Constitution amendments, including the notorious 39th and
which lead to direct conflict between the Court 42nd Amendments nullifying respectively the
and the executive in the appointment of the effect of the High Court judgment against the
next Chief Justice in defiance of an unbroken Prime Minister, drastic curtailment of the power
convention since the commencement of of judicial review and nullification of restrictions
the Constitution. It is surmised that one of on the power of amendment.
the reasons for such supersession could be
ii. Beginning of the new era:
blocking the appointments to the Supreme
Court of some of the judges who could be the These events and background led the Court
kind of judges for whom the then executive to reconsider and redefine its role under the
was propagating for some time – the so-called Constitution. Therefore, realizing the perils of
committed judges.87 The new Chief Justice unlimited power of amendments in the hands
had the judicial record of being sympathetic to of Parliament in the shape of one person
government’s economic policies vis-a-vis the law in the 39th Amendment, it confirmed the
Constitution88 with whom the executive could limitations on the power of amendment. Going
succeed in making some appointments to the by its past record of not being a big defender of
Supreme Court whose vision or understanding civil liberties it declined to examine the legality
of the Constitution coincided with that of the of detention of opposition leaders,90 it gave a
government.89 During such a situation on the ground breaking judgment on equality for the

85 Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.


weakest and the most excluded sections of the
86 I.C. Golaknath and Ors. v. State of Punjab and Anrs. society (SCs & STs) through an unprecedented
AIR 1967 SC 1643.
87 See, e.g., P.P. Rao, A Rare Judge, 5 Journal of
interpretation to the Constitution during the
Indian Law and Society, 157 (2014). Emergency.91 As the Emergency was lifted
88 See for e.g. A.N. Ray, J who gave minority opinions
in Madhav Rao Scindia v. Union of India AIR 1971 SC
in early 1977 and fresh elections were held
530; RC Cooper v. Union of India AIR 1970 SC 564 leading to the defeat of the then Prime Minister
and; Keshavnanda Bharati v. State of Kerala AIR 1973
SC 1461. 90 ADM Jabalpur v. Shivkant Shukla AIR 1976 SC
89 See generally discussions from Granville Austin, 1207.
Working a Democratic Constitution p. 278 onwards. 91 State of Kerala v. N.M. Thomas AIR 1976 SC 490.
87
and her party, the new coalition government society,94 which was later implemented by the
restored the pre-Emergency position of the Centre too,95 and enacting zamindari abolition
Constitution and courts, subject to a few and land reforms laws,96 the Centre also did
exceptions. Besides it removed the right to not do much except by way of nationalization
property from amongst the FRs and moved a of industries and acquisition of private property
part of it to another location.92 But irrespective for public purpose. Even the Civil Rights Act
of such restoration the Court acquired a new making the practice of untouchability an
kind of consciousness and understanding offence could be enacted only in 1955 and
of its obligations under the Constitution and laws such as Equal Remuneration Act, 1976
started giving fresh look and meaning to FRs, and Bonded Labour System Act, 1976 could
particularly to the rights to equality and life and be enacted only during the Emergency.
liberty somewhat shaming the government for
having done pretty little on social and economic Pursuing its new interpretation of equality,
front. Simultaneously it opened the doors of the Court’s major contribution has been its
the Court to the disempowered and weak or recognition as part of the basic structure
any genuine person or organization on their of the Constitution and as absence of
behalf for obliging the government to perform arbitrariness ensuring judicial review of any
their obligations towards persons whom the law or administrative action in respect of any
Constitution treats with special care. This led issue affecting any right of the individual with
to the introduction of public interest or social the possibility of developing into a general
action litigation which, as Baxi says, converted principle of reasonableness of constitutional
the Supreme Court of India into the Supreme order like the principle of proportionality in
Court for Indians.93 European constitutions. Finally, the concept
of “equal protection of laws” has also been
While on the one hand Court’s initial extended to requiring positive state action for
interpretation of the Constitution did not match the realization of equality as also expressly
its makers’ expectations and understanding, provided in Article 38 (2). This approach is also
on the other hand the governments also supportive of state actions under Articles 15(4)
did not do enough for bringing the socio- & (5) as well as 16 (4), (4-A) & (4-B) providing
economic transformation of the society which for special provisions and reservation in public
was expected through it. Apart from some
94 As for e.g in Mysore and Madras.
states initially pursuing the policy of reservation 95 See Resolution of the Government of India in the
for the weaker or excluded sections of the Ministry of Home Affairs, dated September 13, 1950;
Office Memorandum No. 2/11/55-RPS, dated May
7, 1955, the Government of India modified sub-paras
(3) and (4) of paragraph 5 of the Supplementary
92 See, art. 300-A.
Instructions dated January 28, 1952
93 Upendra Baxi (1985), "Taking Suffering Seriously:
96 The Zamindari Abolition and land reforms
Social Action Litigation in the Supreme Court of India,"
legislations were enacted in almost all the states soon
Third World Legal Studies: Vol. 4, Article 6.
after independence.
88
employment and educational institutions.97 would depend upon the extent of the economic
development of the country”, but emphasized
Through its ingenuity the Court has made a that “it must, in any view of the matter, include
somewhat dormant Article 21, which seemed the right to the basic necessities of life and
to have given no fundamental right in the also the right to carry on such functions and
absence of the possibility of a law being tested activities as constitute the bare minimum
under it, has contributed most towards the expression of the human-self”.100
goals set by the Constitution. It reads:
Following this statement, on the question of
No person shall be deprived of his life or bondage and rehabilitation of some labourers,
personal liberty except according to procedure in Bandhua Mukti Morcha v. Union of India101
established by law. the Judge held:

Often relying upon the statement of Field, J It is the fundamental right of everyone
of the US Supreme Court in Munn v. Illinois98 in this country…to live with human dignity,
to the effect that “[b]y the term ‘life’, as here free from exploitation. This right to live with
used, something more is meant than mere human dignity enshrined in Article 21 derives
animal existence”, the Supreme Court through its breath from the Directive Principles of
Justice Bhagwati in Francis Coralie Mullin v. UT State Policy and particularly clauses (e) and
of Delhi99 stated: (f) of Article 39 and Articles 41 and 42 and at
least, therefore, it must include protection of
We think that right to life includes the right the health and strength of the workers, men
to live with human dignity and all that goes and women, and of the tender age of children
along with it, namely, the bare necessaries of against abuse, opportunities and facilities for
life such as adequate nutrition, clothing and children to develop in a healthy manner and in
shelter and facilities for reading, writing and conditions of freedom and dignity, educational
expressing oneself in diverse forms, freely facilities, just and humane conditions of work
moving about and mixing and commingling and maternity relief. These are the minimum
with fellow human beings. requirements which must exist in order to
enable a person to live with human dignity,
The judge conceded that “the magnitude and no state…has the right to take any action
and content of the components of this right which will deprive a person of the enjoyment of
these basic essentials.102
97 See, particularly, Pramati Educational and Cultural
Trust and Ors. v. Union of India and Ors. AIR 2014 SC
2114. 100 Ibid.
98 24 L Ed 77: 94 US 113 (1877). 101 AIR 1984 SC 802.
99 (1981) 1 SCC 608 at 619. The statement has been 102 Also see Vikaram Deo Singh Tomar v. State of
cited and restated in a number of subsequent decisions. Bihar, AIR 1988 SC 1782.

89
The Court has endorsed this statement in a provide timely medical treatment to a person
petition seeking ban on injurious drugs 103
and in need of such treatment has been declared
again in a petition seeking human conditions a violation of his right under Article 21.109
in a care home for females.104 Similarly the Courts have also ordered the government
court has favourably entertained a petition to pay for the life saving treatment of a child
under Article 21 for appropriate relief against whose parents were incapable to pay for such
the leakage of oleum gas from a chemical plant treatment.110
resulting in loss of lives and injury to health.105
The right to appropriate relief against the ill- For some time the Court took the stand that
effects of X-ray radiation on the employees of the right to life in Article 21 did not include the
a State corporation – Bharat Electronics Ltd. right to livelihood.111 But after some ambiguity
– has also been recognized under Article 21.106 on the issue,112 the court held that the right to
livelihood is included in the right to life “because
Further, in a case of the effect of exposure no person can live without the means of living,
to asbestos on the health of workers the Court that is, the means of livelihood”.113 Ensuring
held the right to health and medical aid to livelihood to women the court has also
protect the health and vigour of a worker while invalidated some of the laws which prohibited
in service or after retirement is a fundamental women in participating in some of the livelihood
right under Article 21 read with DPs in Articles activities.114 Court has yet to recognize a
39(e), 41, 43, 48-A and all related articles general right to employment in Article 21.115 The
and fundamental human rights to make the right of agriculturalists to cultivation is part of
life of workman meaningful and purposeful their fundamental right to livelihood.116 Further,
with dignity of person.107 Sewage workers upholding the right of the people in hill areas
employed by the government contractors are for a suitable approach road the court held that
also entitled to humane work conditions and the right to life in Article 21 “embraces not only
to compensation in case of injury or death.108
109 Paschim Banga Khet Mazdoor Samity v. State of
Failure on the part of a government hospital to W.B, AIR 1996 SC 2426.
110 Mohd. Ahmed (Minor) v. Union of India W.P. (C)
103 Vincent Panikurlangara v. Union of India, AIR 1987 7279/2013 (Delhi High Court-April 17, 2014).
SC 990, 994-95 111 Sant Ram, re, AIR 1960 SC 932; A.V.Nachane v.
104 VikaramDeo Singh Tomar v. State of Bihar, AIR Union of India, (1982) 1 SCC 205.
1988 SC 1782. 112 Port of Bombay v. Dilipkumar Raghavendranath
105 M.C. Mehta v. Union of India, AIR 1987 SC 1086 Nadkarni, (1983) 1 SCC 124
106 M.K.Sharma v. Bharat Electronics Ltd., AIR 1987 113 Olga Tellis v. Bombay Municipal Corp., AIR 1989
SC 1792. SC 180; DTC v. Mazdoor Congress, AIR 1991 SC 101.
107 Consumer Education & Research Centre v. Union 114 Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC
of India, AIR 1995 SC 922; Kirloskar Bros. Ltd. v. ESI 1; State of Maharashtra v. Indian Hotel & Restaurants
Corpn.(1996) 2 SCC 682; Kalyaneshwari v. Union of Assn., (2013) 8 SCC 519; Charu Khurana v. Union of
India, (2011) 3 SCC 287. India, (2015) 1 SCC 192.
108 Delhi Jal Board v. National Campaign for Dignity & 115 State of Karnataka v. Umadevi, AIR 2006 SC 1806.
Rights of Sewerage and Allied Workers, (2011) 3 SCC 116 Dalmia Cement (Bharat) Ltd. v. Union of India,
568. (1996) 10 SCC 104.
90
physical existence of life but also the quality of order or direction for the enforcement of FRs
life and for residents of hilly areas, access to including the payment of compensation or
road is access to life itself”.117 Treating clean restoration of status quo ante. These powers
environment an essential aspect of life it has may equally be exercised by the subordinate
observed that it may have precedence over courts subject to the limitation that they cannot
the economic interests of the society.118 Again, issue prerogative writs and invalidate legislation
the Court has held that the right to life includes or decide a case that “involves a substantial
the right to “a reasonable accommodation to question of law as to the interpretation of ...
live in”119 and right to shelter,120 including the [the] Constitution the determination of which is
necessary infrastructure to live with human necessary for the disposal of the case”.124]
dignity.121 It also includes the right of the
individual to water and duty of the State to Another remarkable developments since
provide clean drinking water to its citizens.122 the late 1970s has been the kind of access to
Without very specifically holding that the right courts and judicial procedures and remedies
to food is included in Article 21 the Court has the Court has created.Among them the most
issued directions to the States to ensure that remarkable is the relaxation in the requirement
nobody dies of starvation.123 of standing or locus standi for approaching the
courts through public interest litigation (PIL)
or social action litigation (SAL). Through PIL
iii. Access to courts: any public spirited person may espouse the
cause of others for the enforcement of any
[The procedures which the Supreme Court legal right. Justifying such litigation the Court
has developed include any means by which it has said that “any member of the public having
can be approached including a letter or post sufficient interest can maintain an action for
card written to it or to any of its judges or even the judicial redress for public injury arising
the suo-motu proceedings by the Court based from breach of public duty or from violation
on newspaper or other reliable information. of some provisions of the Constitution or the
Similarly, among the remedies, it may give any law and seek enforcement of such public duty
and observance of such Constitutional or legal
117 State of H.P. v. Umed Ram Sharma AIR 1986 SC
847. provision.”125 Specifically in the context of FRs,
118 M.C.Mehta v. Union of India, (2004) 12 SCC 118.
it observed:
119 Shantistar Builders v. Narayan KhimalalTotame, AIR
1990 SC 630.
124 Consti., Art. 228. Also see, Sections 113 and 395
120 GauriShanker v. Union of India, AIR 1995 SC 55.
of Civil Procedure Code and Criminal Procedure Code
121 Chameli Singh v. State of U.P, AIR 1996 SC 1051.
that restrain which restrain these courts from deciding
122 Narmada Bachao Andolan v. Union of India, (2000)
the constitutional validity of legislation and for details,
10 SCC 664; A.P Pollution Control Board v. Prof.
M.P. Singh, Situating the Constitution in the District
M.V.Naidu, (2001) 2 SCC 62.
Courts, 8 DJA Journal, 47 ff (2012).
123 PUCL v. Union of India,(C) 196 of 2001, Order
125 S.P Gupta v. Union of India, (1981) Supp. SCC 87,
Dated 17.09.2001; PUCL v. Union of India, (2013) 2
218
SCC 688.
91
Where a person or a class of persons to this procedure has also been extended to
whom legal injury is caused by reason of improving the functioning of the government,
violation of a fundamental right is unable to controlling corruption and malpractices of
approach the Court for judicial redress on the government officials including Union and
account of poverty or disability or socially or State ministers, if these activities are somehow
economically disadvantageous position, any associated with the violation of any of the FRs
member of the public acting bona fide can but even without the requirement of FRs for
move the court for relief under Article 32… approaching the High Courts.
so that the fundamental rights may become
meaningful not only for the rich and the well Again, in granting remedies the Supreme
to do who have the means to approach the Court and following it the High Courts have
court but also for the large masses of people been quite liberal and innovative. Apart from
who are living a life of want and destitution the traditional powers of injunction and
and who are by reason of lack of awareness, declaration, they have exercised the special
assertiveness and resources unable to seek powers given to them in the Constitution. They
judicial redress.126 issue writs or directions or any other remedy
such as restoration of status quo ante, grant
As several of the DPs are also read as FRs of compensation, imposition of exemplary
this procedure covers them too as well as costs or costs for litigation and consequential
many other issues if they can somehow be inconvenience or loss. It has also held that
associated with any FR. Following this liberal the remedy with the Supreme Court in Article
approach the Court has allowed various public 32 and with the High Courts in Article 226 is
spirited persons, lawyers, NGOs and social a public law remedy and therefore in cases in
and political organizations to bring petitions on which private law provides no remedy, they
behalf of persons suffering from environment may provide a remedy. Thus a victim of state
pollution and starvation, bonded labourers, action could claim compensation for the loss
tribals, children and women in protected of life which could not be claimed under the
homes, hutment and pavement dwellers, street private law because of the common law bar
hawkers, victims of gas leak, pollution, etc.127 of sovereign immunity.128 In case FRs can be
Starting with the issues of poor and weak claimed against private persons the remedy of
compensation may be granted against private
126 Bandhua Mukti Morcha v. Union of India, (1984) 3
SCC 161, 185. persons too.129 As Article 32 does not provide
127 Among numerous writings on the subject see, U.
any specific procedure or remedies for the
Baxi, Taking suffering Seriously: social Action Litigation
in the Supreme Court of India, 8 & 9 Delhi L. Rev. 91
128 Nilbati Behera v. State of Orissa, AIR 1993 SC
(1979 – 80) and among several writings of P. Singh,
1960.
Protecting the Rights of Disadvantaged Groups through
129 Bodhisattva Gautam v. Shhubbhra Chakraborty,
Public Interest Litigation, in M. P. Singh et al (eds),
(1996) 1 SCC 490; M.C.Mehta v. Kamal Nath, AIR 2000
Human Rights and Basic Needs: Theory and Practice,
SC 1997.
305 (Universal Law Publishing Co., Delhi, 2008).
92
enforcement of FRs the Court exercises the However, it is argued that in view of increasing
power to forge new remedies and fashion new judicial enforcement of social rights all over the
strategies designed to enforce FRs. The Court world the courts must adopt the most suitable
has observed that procedure being merely a strategies for the realization of social and
handmaiden of justice; it should not stand in the economic rights of which PIL is one which has
way of access to justice.130 It is in the exercise definitely brought an ideological shift favouring
of such wide powers that the Supreme Court social transformation.133
and also the High Courts issue remedies such
as of continuous mandamus to monitor the
progress in the realization of rights and may iv. Court induced legislative and administrative
take support of any state or private body or measures:
organization for that purpose. The Court also
uses the dialogical method for arriving at a In the face of lead taken by the courts in
correct decision and forging an appropriate the transformatory goal of the Constitution
remedy in the light of the experience and the governments at the Centre and the States
difficulties felt by different parties to an issue could no longer go to the people for mandate
of rights. These procedures and remedies may with the excuse of the judiciary blocking their
not fit into the existing categories of judicial way in the realization of that goal. They had to
process either in the common law or civil law do what they had failed to do in this respect
systems; they have paved the way towards the until then. Accordingly apart from taking other
understanding and realization of social rights of economic policy issues since mid-1980s and
the people.131 finally introducing the New Economic Policy
in 1991, the Central government followed by
Although the process of social and State governments started conceiving and
economic transformation has gained a lot from implementing social and economic policies
PIL during the nineteen eighties, the process that along with improving the national economy
of gain started slowing down in the next will also directly and immediately help in
decade when it started diversifying in different realizing the constitutional goal of ensuring
directions political, economic and others not social and economic justice to all as expected
directly related to social transformation.132 by the Constitution and incorporated in the

130 M.C.Mehta v. Union of India, AIR 1987 SC 1086.


Preamble as the foremost assurance to the
131 For a critical analysis of judicial process and citizens. Without entering into all the policies
remedies developed through it see, M. Khosla, n. 9
above.
and programs for the advancement of the
132 S. Shankar, Scaling Justice: India’s Supreme Court,
133 See, e.g., several essays included in Suresh
Anti-Terror Laws and Social Rights, 177 (OUP, 2009)
&Narain cited in the previous note. Also see, U. Baxi,
cited in S. Krishnaswami& M. Khosla, Social Justice
Taking Suffering Seriously: Social Action Litigation in the
and the Supreme Court, in M. Suresh & S. Narrain,
Supreme Court of India, 8 & 9 Del. L. R., 91 (1979 – 80)
The Shifting Scales of Justice, 110 (Orient Black Swan,
& M. Khosla, The Indian Constitution, 124 (OUP, 2012).
Hyderabad, 2014).
93
economy or social life in general of the country, Court but also the Centre referred the matter
but in view of the primary pressing goals set to the National Human Rights Commission
by the Constitution of removing poverty and to examine the complaints. Stating that “The
providing social justice to all, take up a few reading of Article 21 together with Articles 39(a)
legislations and administrative schemes which and 47, places the issue of food security in the
the Centre has introduced. Prominent among correct perspective, thus making the Right to
them are the following: Food a guaranteed Fundamental Right which
is enforceable by virtue of the constitutional
1. Recognition and implementation of remedy provided under Article 32 of the
the right to food: Constitution” the Commission found fault not
with the availability or adequacy of food but its
Although the right to food like many other administration by the State.137
rights is not specified in the Constitution, life
could not be conceived or sustained without Later in the People’s Union for Civil Liberties
food.134 Therefore the Court found it included v. Union of India138 and six states having
in the right to life as the right to “adequate starvation conditions, recognizing the right to
nutrition”.135 Following that two public spirited food the Court observed: “what is of utmost
persons wrote to the Chief Justice of India that importance is to see that food is provided to
in two districts of Orissa people were starving the aged, infirm, disabled, destitute women,
and in order to ward off hunger they were destitute men who are in danger of starvation,
being subjected to all kinds of exploitation and pregnant and lactating women and destitute
even being compelled to sell their children. children, especially in cases where they or
Converting the letter into a writ petition the members of their family do not have sufficient
Court issued notices to the State of Orissa funds to provide to them.”139 It further directed:
and got an enquiry conducted. Although no “By way of interim order, we direct the States
immediate relief could be given in view of State’s to see that all the PDS [Public Distribution
assurance to the Court, nobody disputed that Scheme] shops, if closed, are reopened and
state was under an obligation to prevent hunger start functioning within one week from today
and destitution.136 As the situation did not and regular supplies made.”140 Later the
improve even after the directions of the Court, petition became an all India matter in which
the Indian Council of Legal Aid filed another
137 Case No. 37/3/97-LD (http://nhrc.nic.in/
petition in 1996 alleging that despite Court’s impdirections.htm)
138 People’s Union for Civil Liberties (PUCL) v. Union of
directions, another petition was filed in the
India , W.P. (Civil) 196 of 2001.
139 In People’s Union for Civil Liberties (PUCL) v. Union
134 Consti. Art. 47.
of India , W.P. (Civil) 196 of 2001, order dated July 23,
135 See, Francis Coralie Mullin v. Union Territory of
2001. Available at “http://www.righttofoodindia.org/
Delhi, AIR 1981 SC 746, 753.
orders/interimorders.html#box16” (Assessed on April
136 Kishen Patnaik v. State of Orissa, (1989) 1 SCC
14, 2015)
258.
140 Ibid.
94
the Union of India, all the States and the Union and malnourished children. In case of non-
Territories were made parties for the purpose availability of food grains the Act provides for
of devising an all India scheme suitable for cash allowance to be handed over to the senior
every state and region for the purpose of most adult woman in the family. It also provides
ensuring adequate food for everyone within for elaborate administrative arrangements
the country. Later relying on Articles 21 and 47 at the Central, State and local levels for the
it issued detailed directions to the respondents effective implementation of the law.
to ensure adequate nutrition to every citizen in
the country. It also asked them to implement Prior to this law, with a view to enhancing
the midday cooked meals scheme in all the enrolment, retention and attendance in schools
state and state aided schools. The petition is and simultaneously improving nutritional levels
still pending in the Court for the realisation of among children, the National Programme
the right to food.141 of Nutritional Support to Primary Education
(NP-NSPE) was launched as a Centrally
Taking note of the foregoing Court orders and Sponsored Scheme in 1995. In 2001 Mid
directions, NHRC order, international opinion Day Meal Scheme became a cooked Mid Day
and pressure and suggestions from experts Meal Scheme under which every child in every
and human rights campaigners, Parliament Government and Government aided primary
has finally enacted the National Food Security school must be served a cooked mid-day
Act, 2013 which ensures the right to subsidized meal with a minimum content of 300 calories
food grains to approximately two-third of of energy and 8-12 gram protein per day for
India’s population covering 75% of rural and a minimum of 200 days. The Scheme was
50% of the urban people.142 The Act enables further extended in 2002 to cover not only
its beneficiaries to purchase 5 kilograms per children studying in government, government
eligible person per month of cereals at heavily aided and local body schools, but also children
subsidized rates; provides special support studying in Education Guarantee Scheme
to pregnant women and lactating mothers, (EGS) and Alternative & Innovative Education
children upto the age of fourteen years (AIE) centres. From time to time the scheme
has been revised to improve the quality of
141 PUCL v. Union of India, 2003(9) SCALE 835. For
content and service of meals. In October 2007,
other orders see., (2013) 2 SCC 688, (2013) 2 SCC
684, (2013) 2 SCC 682, (2013) 2 SCC 663 , (2012) 12 the Scheme was extended to cover children of
SCC 357, (2011) 14 SCC 559, (2011) 14 SCC 556,
upper primary classes with improved norms
(2011) 14 SCC 393, (2011) 14 SCC 331, (2010) 14
SCC 611, (2010) 14 SCC 613, (2010) 15 SCC 147, for meals and their service.
(2009) 14 SCC 392, (2007) 1 SCC 719, (2007) 1 SCC
728, (2004) 1 SCC 104, (2004) 1 SCC 108.
142 The new Government at the Centre which assumed The Right to Fair Compensation and
power in May 2014 is planning to reduce the percentage
Transparency in Land Acquisition, Rehabilitation
of the population covered under the Act to 40. But so
far it has not been done. and Resettlement Act, 2013 also makes special
95
provision for food security insofar as no irrigated the people”. In 1978 one of the High Courts
multi-crop land may be acquired except as a held that the right to freedom of speech and
demonstrable last resort subject to the condition expression in Article 19 included the right to
that an equivalent cultivable wasteland shall education also.144 The decision could not be
be developed for agricultural purposes or an taken seriously and was even overruled by the
amount equivalent to the value of the land Supreme Court.145 Following Francis Coralie
acquired shall be deposited with the appropriate Mullin that the right to life in Article 21also
government for investment in agriculture for included the right to “facilities for reading,
enhancing food-security. It may be hoped that writing and expressing oneself in diverse
these provisions in the Act will ensure availability forms”, a decade later the Court recognized
of food on a sustainable basis. the right of every child to free education until it
completed the age of fourteen years. Beyond
2. Realisation of the right to education: that the right to education was subject to
limits of economic capacity and development
The right to education has been central to of the state.146 To place the right on sound
all demands for a bill of rights in India from the footing in 2002 Article 21-A was added to FRs
earliest times, i.e. since the first formal demand which reads: “The State shall provide free and
in 1895. But realizing the ground realities of the compulsory education to all children of the age
time the Constitution makers made it only a of six to fourteen years in such manner as the
negative fundamental right to the extent that State may, by law, determine.” By the same
nobody shall be denied admission to state amendment, Article 45 has been reworded,
educational institutions on certain grounds.143 which now reads, “The state shall endeavour
The availability of education as a matter of right to provide early childhood care and education
was shifted to DPs and that too in a limited way. for all children until they complete the age of six
Among them Article 41 provides that “The State years.” The same amendment also imposes a
shall, within the limits of its economic capacity fundamental duty on every citizen “who is a
and development, make effective provision for parent or guardian to provide opportunities for
securing the right … to education” and Article education to his child or … ward between the
45 provided that “The State shall endeavour age of six and fourteen years.”147
to provide, within a period of ten years from
the commencement of this Constitution, for After long deliberations on the implementation
free and compulsory education for all children of Article 21-A, Parliament enacted the
until they complete the age of fourteen years.”
144 Anand Vardhan Chandel v. University of Delhi, AIR
Article 46 also provides that “The State shall 1978 Del 308.
145 University of Delhi v. Anand Vardha Chandel, (2000)
promote with special care the educational and
10 SCC 648. Also see, M.P. Singh, Constitutional Right
economic interests of the weaker sections of to Vidya or Privilege for Avidya, 8 JBCI 251 (1981).
146 Unni Krishnan v. State of A.P., (1993) 1 SCC 645.
143 Art. 29 (2). 147 Art. 51-A (k), Constitution of India.
96
Right of Children to Free and Compulsory as was being conceived through Article 21-A. It
Education Act, 2009 which after administrative was implemented in partnership with the State
arrangements and court litigation finally came Governments to cover the entire country and
into force from April 2012.148 The Act makes addresses the needs of 192 million children in
free and compulsory education a fundamental 1.1 million habitations. The programme seeks
right of every child in the age group of 6 to to open new schools in those habitations
14. It provides for the quality and standards which do not have schooling facilities and
of schools, teachers, curriculum, evaluation, strengthens existing school infrastructure
access and duties and responsibilities of all through provision of additional class rooms,
concerned. Its main features include free and toilets, drinking water, maintenance grant and
compulsory education to all children in the age school improvement grants. Existing schools
group of 6 to 14 in a neighbourhood school till with inadequate teacher strength are provided
completion of elementary education; provision with additional teachers, while the capacity
for 25 percent seats for weaker sections of existing teachers is being strengthened
and economically disadvantaged groups in by extensive training, grants for developing
the admission in private schools; all schools teaching-learning materials and strengthening
are required to meet all specified norms of the academic support structure at a cluster,
and standards within three years to avoid block and district level. SSA seeks to provide
cancellation of their recognition; pupil-teacher quality elementary education including life skills
ratio is fixed at 30:1; mandates improvement in with a special focus on the education of girls
quality of education; sharing of financial burden and children with special needs. SSA also
between the Central and State Governments; seeks to provide computer education to bridge
constitution of National Commission for the digital divide.
Elementary Education to monitor all aspects
of elementary education including its quality; The recent available data on elementary
and prohibition of physical punishment and education shows a positive trend, as though
mental harassment, screening procedures for with slight variation in different parts of the
admission of children, charging of capitation country it is seen that more than 96 per cent
fee, private tuition by teachers and running of of all children in the age group of 6 to 14 years
schools without recognition. have been in the schools during 2009-2014.149
The number of non-enrolled students was 3.3
Well before the Act of 2009 the Central per cent in 2014. The number of students
Government had introduced an administrative keeps growing in private schools compared to
scheme called Sarva Siksha Abhiyan (SSA) in state schools. The quality of education has also
2000 – 2001 for achieving universalization of
149 ASER (Annual Survey on Education Report)
elementary education in a time bound manner,
prepared by a NGO ‘Pratham’ for the Government of
India in rural areas, 2014.
148 See, cases cited in n. 76 above.
97
shown slight improvement in 2013 compared account of the concern of the government for
to earlier years. It is better in private schools the realization of the right to education.
compared to state schools. The teachers’
attendance in the state schools stands at 3. Ensuring the right to housing:
85 per cent but the number of students in
these schools has decreased. The difference Like food, housing is also not expressly
between the enrolment of girls and boys is mentioned in the Constitution, but relying again
also getting narrower, and most of the girls at on Francis Coralie Mullin, in Shantistar Builders
primary level are also in the school as indicated v. Naarayan Totame154 the Court held that the
by girls to boys enrolment ratio of 0.93 in 2013- right to life includes the right to ‘a reasonable
14.150 More and more schools both private and accommodation to live in’ and again in Gauri
state are meeting the requirements of RTE Shankar v. Union of India155 it reinforced it by
Act, 2009 in respect of teacher student ratio, including the necessary infrastructure in the
sanitation facilities, libraries, etc. even though shelter to live with human dignity.156 In spite
the exact standards are yet to be achieved.151 of these pronouncements, large number of
people, especially in big cities, can be seen
The government is also spending a good without any kind of house or shelter. Families,
percentage of its budget on education. One of generations after generation spend their lives
the reports of the government shows that in on pavements or in slums like the ones Lapierre
the year 2012 – 13, 10.70 per cent of the total has sketched in the City of Joy. Most of these
budget estimates was allocated to education of people come to the cities from the rural areas
which nearly three fourths was contributed by in search of livelihood and continue to stay
the State Governments and nearly one fourth there in the absence of anything to fall back at
was contributed by the Central Government.152 the native place. Therefore, they settle down
Out of the budgeted amount 50.36 per cent wherever they find a place to do so, including
was spent on elementary education alone.153 the pavements. Of course such settlements
These figures give somewhat satisfactory cause inconvenience to city dwellers and
visitors in a number of ways and they would
150 ‘Analytical Tables 2013-14, Elementary Education
like them to be removed away from their homes
in India: Progress towards UEE’, National University of
Educational Planning and Administration, 2014, p. 5 or from the pavements or other public places
(Data in the report was based on the data received uptill
such as parks. Though in Olga Tellis v. Bombay
30th September 2013 under the District Information
System for Education initiative of Government of Municipal Corpn.157 the Court did not recognize
India). Available at, “http://www.dise.in/Downloads/
a right to settle down on the pavements, it
Publications/Documents/AnalyticalTable-2013-14.pdf”
(Accessed March 22, 2015). recognized such settlements concomitant to
151 Ibid. ASER, 2014, p. 83.
152 ‘Analysis of Budgeted Expenditure on Education 154 (1990) 1 SCC 520, 527.
2010-11 to 2012-13’, Government of India, Ministry of 155 (1994) 6 SCC 309.
Human Resource Development, 2014, p. 1. 156 Chameli Singh v. Sate of U.P., (1996) 2 SCC 549.
153 Id., p.3. 157 (1985) 3 SCC 545.
98
the right to livelihood recognized in Article 21. poor, including night shelters for homeless,161
Therefore, removal of such persons from the have been pursued by the Central or State
pavements or public land required adequate governments, though no legislative move
notice as part of natural justice. Later in has yet been taken or is in sight.162 Among
Ahmedabad Municipal Corp v Nawab Khan,158 these schemes Indira Awaas Yojana (IAY)
the Court also drew a distinction between long was launched in May 1985 and is being
and short term settlers and accorded higher implemented as an independent scheme since
rights to the former. In Olga Tellis the Court 1 January 1996. IAY aims at helping rural
gave directions to provide alternative site to people below the poverty-line (BPL) belonging
the pavement dwellers. Therefore as a matter to SCs/STs, freed bonded labourers and non-
of policy the government or the local authority SC/ST categories in construction of dwelling
provides alternative accommodation to the units and upgradation of existing unserviceable
homeless before they are removed from their kutcha houses by providing assistance in the
home or from unauthorized occupations of form of full grant.
public land. But in one of the cases the Court
made a damaging remark withdrawing that A Sub-Mission under Jawaharlal Nehru
support and even insinuating criminality to National Urban Renewal Mission (JNNURM),
squatters.159 It observed: Integrated Housing and Slum Development
Programme (IHSDP) administered by Ministry
Establishment or creating of slums, it seems, of Housing and Urban Poverty Alleviation
appears to be good business and is well (MHUPA) was envisaged and brought into
organized. The number of slums has multiplied effect in 1993–94. The major components of
in the last few years by geometrical proportion. the scheme are housing, shelter up-gradation,
Large areas of public land, in this way, are sanitation, roads, drains, footpaths, social
usurped for private use free of cost. …The amenities like construction of Primary Health
promise of free land, at the taxpayers’ cost, in Centers, Anganwadi buildings etc.
place of a jhuggi, is a proposal which attracts
161 In Court on its Own Motion v. Govt. of NCT &
more land grabbers. Rewarding encroaches
Others, MANU/DE/2987/2011 the High Court of
on public land with free alternate site is like Delhi relying upon a scheme of Delhi Government
for the purpose of establishing not only temporary
giving a reward to a pickpocket.160
but permanent shelter homes for every one hundred
thousand segment of population ordered for the
construction of such shelters with requisite facilities
Court’s ambivalence in this regard has
ensuring dignity to homeless people within the territorial
diluted whatever right the earlier decisions had limits of Delhi; also see The Delhi High Court pulls up
govt. for ‘inhuman condition’ of night shelters, Indian
recognized. A few housing schemes for the
Express (March 27, 2014)
162 For a critical review on the right to food and housing
158 AIR 1997 SC 152 see, B.B. Pande, Re-orienting the ‘Rights’ Discourse
159 Almitra Patel v. Union of India, (2000) 2 SCC 679. to Basic Human Needs, in M.P. Singh et al (eds), n. 69
160 Id, at 685. above at 149.

99
Rajeev AwasYojana (RAY) a scheme for the Again, following Francis Coralie Mullin,
slum dwellers and urban poor on the lines of in a series of cases briefly alluded to above,
IAY for the rural poor has been sanctioned the Court has found that the right to live with
by the Government of India for 2013-2022. human dignity includes the right to good health.
The scheme provides for affordable housing In Consumer Education and Research Centre
through partnership and the scheme for v. Union of India165, the Court explicitly held
interest subsidy for urban housing would be that “the right to health … is an integral facet of
dovetailed into the RAY which would extend meaningful right to life” and added that the right
support under JNNURM to States that are to health and medical care is a fundamental
willing to assign property rights. As in 2014 right under Article 21.This recognition of the
around INR 8.68 billion have been released by right to health has established a framework for
the government as first installment for the Rajiv addressing health concerns within the rubric
Awas Yojana.163 RAY is having proportional of public interest litigation which has resulted
support from Central Government as fifty in establishing that the state is obliged to
percent contribution for towns having more ensure the creation of conditions necessary
than 0.5 million population and seventy five for good health, including provision for basic
percent for towns with less than 0.5 million curative and preventive health services and
population, also up to eighty percent Central the assurance of healthy living and working
contribution is envisaged under the scheme for conditions.
North –Eastern and Special Category States.164
Thus emphasizing the preservation of life
Another scheme, Rajiv Rinn Yojana (RRY), as one of the paramount duties of the state
effective from October 1, 2013 envisages in Parmanand Katara v. Union of India166, the
the provision for a subsidy of 5% on interest Court directed the availability of access to
charged on the admissible loan amount to curative health services. The case concerned
economically weaker sections (EWS) having the availability of emergency medical treatment
annual income as in 2014 below INR 0.1 for a seriously injured man at a local hospital.
million and low income group (LIG) having The hospital doctors refused to provide the man
annual income as in 2014 between INR 0.1 to with emergency aid and sent him to another
0.2 million segments to enable them to buy or hospital twenty kilometers away. He died of
construct a new house. his injury on way to the other hospital. The
Court was asked whether the injured citizens
4. Ensuring health care: have a constitutional right to instantaneous
medical treatment under Article 21. It held
163 Annual Report 2013-14, at p. 23, Ministry of that Article 21 obliges the state to take every
Housing & Urban Poverty Alleviation, Government of
India. 165 (1995) 3 SCC 42.
164 Id. 166 (1995) 3 SCC 248.

100
possible measure to preserve life. Provision for including primary health centres and specialist
medical services in need was necessary for clinics, for treatment of his injuries. Seven state
the preservation of life, the Court added. It also hospitals were unable to provide emergency
asked the state to remove legal impediments treatment for his injuries because of non-
imposed on doctors and hospitals for providing availability of bed and trauma and neurological
emergency medical aid. services. The issue before the Court was
whether the lack of adequate medical facilities
Another significant decision which for emergency treatment constituted a denial
strengthened the recognition of the ‘right to of the fundamental right to life. The Court
health’ was Indian Medical Association v. V.P. found that it is the primary duty of a welfare
Shantha167. In that case the Court ruled that state to ensure that medical facilities are
the provision of medical service (whether adequate and available for treatment. It also
diagnosis or treatment) in return for monetary required the state to ensure that primary health
consideration amounted to ‘service’ for the centres are equipped to provide immediate
purpose of the Consumer Protection Act, 1986. stabilizing treatment for serious injuries and
Consequently medical practitioners could emergencies. In addition, the Court ordered
be held liable under the Act for deficiency in the state to increase the number of specialist
service in addition to negligence. The decision and regional clinics around the country to treat
has gone a long way towards protecting serious injuries and to create a centralized
the interests of patients. However, medical communication system among state hospitals
services offered free of cost were considered so that patients could be transported
to be beyond the purview of the said Act. The immediately to the facilities where space is
courts have, however, awarded compensation available. It also recognized and emphasized
even against government hospitals for medical upon the need of substantial expenditure to
negligence resulting in the death of a person.168 ensure adequate medical facilities and held
that a state could not escape its constitutional
In Paschim Banga Khet Mazdoor Samity obligation on account of financial constraints.
v. State of West Bengal,169 the Court again Courts have actually ordered the government
addressed the adequacy and availability of to pay for the life-saving treatment of a child
medical treatment for individuals in need of whose parents were incapable of paying for
medical assistance. In this case, a man fell such treatment.170
from a train and suffered serious head trauma.
He was brought to a number of state hospitals, In another case the Court also addressed
the quality and safety of the nation’s blood
167 AIR 1996 SC 550
168 R. Shanmugakani v. The Govt. of Tamil Nadu,
WP (MD) No. 13867 of 2011, decided on 08.08.2014 170 Mohd. Ahmed (Minor) v. Union of India, W.P.(C)
(Madras High Court). 7279/2013, decided on 17 April, 2014 (Delhi High
169 (1996) SC 2426. Court).

101
banks.171 In the then status of state and from their spouses or fiancés.173 In the same
commercial blood banks the Court saw a case it also held that a private hospital was
serious threat to health. Donors were paid for justified in disclosing confidential information
their blood regardless of their health status. regarding a man’s medical status to his fiancée
Besides, most state blood banks were not and that the woman’s right to good health took
conducting tests on the blood for transmissible precedence over the man’s right to privacy. It
infections, and commercial blood banks were also emphasized on the need of treating HIV or
not ensuring that healthy individuals donated AIDS infected persons with dignity and giving
blood. The Court banned commercial blood them suitable employment too.
banks and instituted a state licensing scheme
for all blood banks. The government was also Again in Bandhua Mukti Morcha v. Union of
required to enact legislation for regulating the India,174 examining the unhealthy conditions
collection, processing, storage, distribution, in which quarry workers and their families
and transportation of blood, and the overall lived and worked, the Court addressed the
quality of blood banks. Following the Court types of social conditions necessary for the
decision the Drugs Controller General of enjoyment of health. It directed the state to
India made draft rules to further amend the provide workers with clean drinking water and
existing law in the Drugs & Cosmetics Act, sanitarian and medical facilities to protect their
1940 for improving the blood banking system health.
in the country. In 2002, Government of India
announced the National Blood Policy which Issues of health have also been closely
includes ensuring availability of safe and related with environment and therefore several
adequate quantity of blood, blood components environmental issue such as provision for clean
and products; taking blood from voluntary residential conditions in a municipal area or
donors without payment; prohibition on sale relocation of industry or use of pollution free
of blood for profit; and addressing issues fuel in vehicles are all environmental issues
concerning training of technical personnel, closely related to health on which the courts
research, and development.172 have taken health friendly decisions and given
appropriate directions to municipal and other
Addressing further the issues concerning public authorities.175
AIDS the Court has held that people with
sexually transmitted diseases, such as HIV, can Among the legislative and administrative
be punished for concealing this information
173 ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296.
171 Common Cause v. Union of India and Ors., Writ 174 (1984) 3 SCC 161.
Petition (Civil) 91 of 1992; DOD-04.01.1996 175 See, e.g., M.C. Mehta v. Union of India, AIR 2002
172 See National Blood Policy, 2002 (http:// SC 1696; See also Balram Prasad v. Kunal Saha (2014)
www.who.int/bloodsafety/transfusion_services/ 1 SCC 384; Occupational Health and Safety Association
IndiaNationalBloodPolicy2007.pdf?ua=1) v. Union of India AIR 2014 SC 1469; Sahara House v.
Union of India (2014) 14 SCC 532.
102
measures for securing the right to health, structure and designated referral facilities;
no law secures it yet notionally. Only a few promotion of access to improved health care
administrative measures have been taken at household level through community based
which include the National Rural Health Mission groups; strengthening public health through
(2005-12) which seeks to provide effective innovative preventive and promotional action;
healthcare to rural population throughout the increased access to health care through
country with special focus on 18 states, which creation of revolving fund; prioritizing the most
have weak public health indicators and/or weak vulnerable amongst the poor and ensuring
infrastructure. Its key components include quality health care services.
provision for a female health activist in each
village; a village health plan prepared through For ensuring safe child birth and prevention of
a local team headed by the Health & Sanitation mortality of mother and child at birth the Central
Committee of the Panchayat; strengthening government introduced the National Maternity
of the rural hospital for effective curative care Benefits Scheme (NMBS) in 1995 which was
made accountable to the community through later modified into Janani Suraksha Yojana
Indian Public Health Standards (IPHS); and (JSY) in 2005. JSY ensures safe motherhood
integration of vertical Health & Family Welfare intervention under the National Rural Health
Programmes and Funds for optimal utilization Mission (NHM). It promotes institutional delivery
of funds and infrastructure and strengthening among poor pregnant women. The scheme
delivery of primary healthcare. It seeks to extends to all states and Union Territories, with
improve access of rural people, especially poor a special focus on Low Performing States.
women and children, to equitable, affordable,
accountable and effective primary healthcare. Effective June 1, 2011 the Government of
India has also launched Janani Shishu Suraksha
A similar plan for the urban population Karyakaram (JSSK) to evolve a consensus on
– National Urban Health Mission – aims the part of all States to provide completely free
to improve the health status of the urban and cashless services to pregnant women
population in general, but particularly of the including normal deliveries and caesarean
poor and other disadvantaged sections, by operations and care and treatment of sick new
facilitating equitable access to quality health born up to 30 days after birth in Government
care through a revamped public health health institutions in both rural & urban areas.
system, partnerships, community based
mechanism with the active involvement of the Nirmal Bharat Abhiyan (NBA) previously
elected local bodies. It aims at improving the called Total Sanitation Campaign (TSC) being
efficiency of public health system in the cities a Community-led Total Sanitation (CLTS)
by strengthening, revamping and rationalizing programme was initiated by Government of
existing government primary urban health India in 1999. As Census 2011 data shows
103
out of total 246,692,667 households in 2011, existence of life but also the quality of life and
53.1% households do not have any type of for residents of hill areas, access to road is
Latrine facility. access to life itself.”179 Recognizing hawking
on public streets, a right protected under
5. Ensuring right to livelihood: Article 19 (1) (g) as a means of livelihood, the
Court has repeatedly held that the right could
The right to livelihood is very much part of be subjected only to reasonable restrictions
DPs in Articles 39 (a) and 41 which respectively imposed by law in the interest of others
require the state to direct its policy towards using the public streets.180 Ordering the strict
securing that “the citizens, men and women observance and implementation of Prohibition
equally, have the right to an adequate means of Employment as Manual Scavengers and their
of livelihood” and to make within the limits Rehabilitation Act, 2013 the Court has raised
of its economic capacity and development, the amount of compensation for the death of
“effective provision for securing the right to any worker in the process of cleaning severs
work, to education and to public assistance in even though it has also ordered for making
case of unemployment, old age, sickness and it a crime to employ anyone in such cleaning
disablement, and in other cases of undeserved without observing all safety measures.181 The
want.” But until recently no effective legislative Court has recognized dancing as profession
or administrative measures were taken for and a means of livelihood for dancing girls
the realization of this right.176 Only through its as well as a business for those who maintain
interpretation of Article 21, as noted above, places for dancing and a ban on such dancing
the Court from mid 1980s started pronouncing in small restaurants and bars while permitting
that the right to life included the right to it in multi-starred hotels violates Article 19 (1)
livelihood “because no person can live without (g) and deprives a person of her means of
the means of living, that is, the means of livelihood.182
livelihood”177; for the agriculturists cultivation is
part of their FR to livelihood178; and for earning
179 (1986) 2 SCC 68.
their living the people in hill areas have the right
180 See, e.g., Sodan Singh v. New Delhi Municipal
for a suitable approach road because the right Committee, (1989) 4 SCC 155 & (1998) 2 SCC 727;
Sarojini Nagar Market Shop Keepers Assn. v. NDMC,
to life in Article 21 “embraces not only physical
(2000) 10 SCC 341 &Gainda Ram v. MCD, (2010) 10
SCC 715, Maharashtra Ekta Hawkers Union v. Municipal
176 The Bonded Labour System (abolition) Act, 1976 Corporation, Greater Mumbai, (2009) 17 SCC 151&
only abolished the system of bonded labour but did not (2014) 1 SCC 490.
make any provision for the rehabilitation or livelihood for 181 Safai Karamchari Andolan v. Union of India, 2014
the persons released from bondage. Stpl (web) 206 decided on 27.3.2014.
177 Olga Tellis v. Bombay Municipal Corpn, AIR 1986 182 State of Maharashtra v. Indian Hotel & Restaurants
SC 180, 193. Assn., (2013) 8 SCC 519. Thanks to Pande for drawing
178 Dalmia Cement (Bharat) Ltd. v. Union of India, my attention towards this case. Also note, Anuj Garg v.
(1996) 10 SCC 104 &Charan Singh v. State of Punjab, Hotel Assn. of India, (2008) 3 SCC 1; Charu Khurana v.
(1997) 1 SCC 151. Union of India (2015) 1 SCC 192.

104
The Court decisions, which have limited National Social Security Board at the Central
effect on reality, have induced a few legislative level which shall recommend formulation of
and administrative measures during the last social security schemes for life and disability
few years.183 They include the Mahatma Gandhi cover, health and maternity benefits, old age
National Rural Employment Guarantee Act, protection, and any other benefit as may be
2005 (MNREGA) which aims at guaranteeing determined by the Government for unorganized
the ‘right to work’ and ensuring livelihood workers as well as schemes relating to
security in rural areas by providing at least 100 provident fund, employment injury benefits,
days– raised to 150 days for STs in 2014 – of housing, educational schemes for children,
guaranteed wage employment in a financial skill upgradation, funeral assistance and old-
year to every household whose adult members age homes by the State Governments. Further,
volunteer to do unskilled manual work. During it envisages constitution of a National Social
its existence of over eight years the law has Security Board to recommend to the Central
received diverse reports, but the overall Government suitable schemes for different
assessment is that it has helped in improving sections of unorganized workers; monitoring
the life of rural poor by making them aware of the implementation of schemes and advising
their claims and asking for minimum or better the Central Government on matters arising
wages for work they do for others either in out of the administration of the Act and for the
agriculture or any other sector. The MNREGA setting up of constitution of Workers’ Facilitation
outcome data 2013-14 (Dec.-13) shows Centre to (i) disseminate information on social
that 38,126,455 households were provided security schemes available to them, and (ii)
employment out of 43,759,203 households facilitate the workers to obtain registration
that demanded employment in total.184 from district administration and enrolment of
unorganized workers.
The other relevant legislation in this regard is
Unorganised Sector Workers’ Social Security Dealing with another vulnerable section of
Act, 2008 which provides for constitution of the society is the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of
183 Apart from the writings of Nobel Prize winning
economists such as Joseph Stiglitz and Amartya Forest Rights) Act, 2006 which recognizes
Sen, factual and fictional writings such as P. Sainath,
the right of STs and forest dwellers to hold
Everybody Loves a Good Harvest (Penguin India, 1996);
H. Mander, Ash in the Belly (Penguin India, 2012) & and live on the forest land under the individual
R. Mistry, A Fine Balance (Faber & Faber, 1996) and
or common occupation for habitation or for
involvement of some grassroots workers such as
Aruna Roy and Harsh Mander in the policy making has self-cultivation for livelihood and enjoy their
influenced these steps.
community rights even in cases where such
184 “Mahatma Gandhi National Rural Employment
Guarantee Act, 2005 Report To The People - 2nd right could not be recorded.185
February 2014” at p. 35, Ministry of Rural Development
Department of Rural Development, Government of India, 185 Section 3(1), Scheduled Tribes and Other Traditional
New Delhi 2014. Forest Dwellers (Recognition of Forest Rights) Act, 2006

105
Addressing the issue of livelihood of the scheme called Swadhar Yojna for women in
street vendors and hawkers Parliament passed difficulty provides for a home-based holistic
the Street Vendors (Protection of Livelihood and integrated approach through provision for
and Regulation of Street Vending) Act, 2014. primary need of shelter, food, clothing and care
The Act protects the livelihood rights of street of the marginalized women living in difficult
vendors and regulates street vending through circumstances who are without any social
demarcation of vending zones and by laying and economic support; to rehabilitate them
down conditions for and restrictions on street socially and economically through education,
vending. awareness, skill up-gradation and personality
development through behavioural training
The Prohibition of Employment as Manual etc; to arrange for specific clinical, legal and
Scavengers and their Rehabilitation Act, 2013, other support for women/girls in need of those
prohibits manual scavenging as well as manual interventions by linking and networking with
cleaning of severs septic tanks and provides for other organizations in both government & non-
the rehabilitation of those who were employed government sectors on case to case basis
in these activities will be trained in alternative and; to provide such other services as will be
livelihood skills on payment of a suitable stipend required for the support and rehabilitation to
of not less than Rs. 3000, grant of concessional such women in distress. Again, the National
loan for taking up an alternative occupation Social Assistance Scheme (NSAS) or National
on a sustainable basis, scholarships for their Social Assistance Programme (NSAP) 1995 is
children, one-time cash assistance, allotment another welfare program of the Government
of a residential plot and financial assistance of India administered by the Ministry of Rural
for house construction or ready-built house Development. The programme is being
with financial assistance and such other legal implemented in rural as well as urban areas. It
and programmatic assistance as notified comprises old age pension scheme for below
by the Central or State Government, for the poverty line (BPL) persons aged 60 years or
rehabilitation of the manual scavengers.186 above of monthly pension of Rs. 200/- up to
79 years of age and Rs.500/- thereafter; under
Besides these laws an administrative the Widow Pension Scheme widows above 40
scheme called Prime Minister’s Rozgar Yojana are entitled to a monthly pension of Rs. 200;
(PMRY) was launched by the Government of under National Disability Pension Scheme
India in 1993 provides for self-employment persons above 18 with severe and multiple
opportunities to the unemployed youth and disabilities are entitled to a monthly pension
women from low income families by granting of Rs. 200; under National Family Benefit
them loans for starting gainful activities. Another Scheme a BPL household is entitled to lump
sum amount of Rs. 10,000 on the death of
186 Section 13, The Prohibition of Employment as
Manual Scavengers and their Rehabilitation Act, 2013 primary breadwinner aged between 18 and 64
106
years; and under the Annapurna scheme 10 taken by the Central government. As many
kg of food grains per month are provided free of these issues fall within the concurrent
of cost to those senior citizens who, though jurisdiction of the Centre and the States
eligible, have remained uncovered under the different states have also taken their own
above schemes. measures in support of these rights. However,
all taken into account much more is required
By merging the two erstwhile wage to be done.
employment programmes – National Rural
Employment programme (NREP) and Rural
Landless Employment Guarantee Programme Conclusion:
(RLEGP) the Jawahar Rozgar Yojana (JRY)
was started with effect from April, 1, 1989 The Constitution of India has now been in
on 80:20 cost-sharing basis between the operation for over sixty-seven years. During
Centre and the States. The main objective of these sixty-seven years it may have failed
the yojana was additional gainful employment to transform the Indian society and state
for the unemployed and under-employed to the extent and exactly on the lines which
persons in rural areas. The other objective its makers may have envisioned, but it has
was the creation of sustained employment by maintained and strengthened all the institutions
strengthening rural economic infrastructure and processes it had initially established and
and assets in favour of rural poor for their direct conceived. The social transformation which it
and continuing benefits. Since April 1, 1999 this aimed at may have not been exactly on the
JRY was replaced by Jawahar Gram Samridhi expected lines and as fast as it should have
Yojna (JGSMY). Later from September 25, been, but the foregoing description of its
2001, JGSMY was merged with Sampoorna journey during these sixty-seven years keeps
Grameen Rozgar Yojna (SGRY). the hope alive in its institutions and goals. In
view of the enormous problems of a developing
With all administrative drawbacks in the polity, economy and society coupled with vast
implementation of these schemes they have disparities and distinctions, the process may
given some relief to a large number of people have been much slower than what could be
in need of social security to ward of starvation expected, but it has successively moved in
and destitution. India has a very long road to expected direction. The social and economic
walk before it will be able to ensure “inherent disparities are still reprehensible especially in
dignity” or social justice to every individual terms of unmet basic needs and entitlements.
within its territory. Ideological debates continue on the kind of
economic policies that should be pursued for
The foregoing account of legislative and the realisation of social and economic justice
administrative measures is confined to steps which the Constitution has promised as the
107
foremost goal to be achieved for all citizens. decisive role. A majority of people cannot be
In the midst of these debates the steps taken denied social and economic justice including
since the beginning of the current millennium equality of status and opportunity indefinitely in
keep the hope alive that at least the ground a democratic polity indefinitely or for too long.
norms of social and economic justice must Therefore, the people of India still continue to
be met during the next few decades. The express their hope and faith in the Constitution
polity and its process that the Constitution for the realisation of its transformative vision.
establishes has played and is expected to play

*******

108
Access to Justice and Legal
Services in the Constitutional
Framework of India
Prof. (Dr.) Ranbir Singh*

“Justice is doing for others what we would of Constitutionalism in Britain. Magna Carta
want done for ourselves.” emphasized over the phenomena that the King
Gary Haugen, International Justice Mission is not above the law which represents that rule
of law is supreme2.
“Access to Justice” connotes primary rights
of humans granted by the common law and The term “access” is self-explanatory and
persists till ceased or stopped under any leads towards right to move for remedy.
statutory or constitutional provision drafted “Access” is not a concept but reflects the
after consideration by the legislature under ancient principle of Roman law i.e. “ubi jus
due process of law. The concept of “access ibi remedium” which says where there is a
to justice” and “rule of law” was rooted up in right, there is a remedy. It is on the other
the twelfth century during the reign of Henry II way, visualized as “the right to get ones due”.
in England. The King Henry II gave his consent The other term “Justice” is toppled term to
for formulating system of writs for facilitating “Justice” which persist in invisible format but
access of King’s Court for each and every its presence or absence is felt everywhere.
litigants from all classes of the society1. But A number of Jurist since ancient period to till
the Magna Carta, which was the result of date have tried to enunciate variety of theories
rebellion due to abuses of “King’s Justice” over Justice, but still the research for getting in
by King John, became the pioneering source consensus is on.

* Vice-Chancellor, National Law University, Delhi


However, a common understanding of this
& Member, Board of Management, International
Association of Universities (IAU), Paris, Member Council, word is read as being synonymous with Right.
The Association of Commonwealth Universities (ACU),
Whatever is Right is just, and vice versa. A king
London, Founding Member, Board of Governors', Asian
Law Institute, (ASLI), Singapore, Member, Insolvency has to be righteous, for if he discharges his
and Bankruptcy Board of India and Member, Board of
duties to the best of his abilities, then he is just.
Governors', Doon School, Dehradun.
1 Biancalana, J. (1988). For Want of Justice: Legal
2 McIlwain, C. (1914). Due Process of Law in
Reforms of Henry II. Columbia Law Review, 88(3), 433-
Magna Carta. Columbia Law Review, 14(1), 27-51.
536. doi:10.2307/1122686
doi:10.2307/1111001
109
As a corollary, a person who is unlawful, and faced, and the towering and colossal task of
has no regard for civilized conduct is unjust. nation building that lay ahead, it was decided
His actions are unjustified and he will have to that these guidelines should not be mandatory,
account for all the wrong that he has done to but should express in its entirety the intention
people. This psychological expectation from of the Constitution framers. The Directive
the State is embedded within each denizen Principles of State Policy were therefore kept
to punish every person who is at the wrong non-justifiable, i.e. they could not be enforced
pedestal, and to bring him to Justice, is what in the Court of Law3.
they are indoctrinated into. To them, the State
is the supreme custodian of their rights, and However, even after sixty five years of
whenever the sanctity of this right is threatened, Independence, when the country still is
it is the duty of the state to intervene and representative of an India within an India,
restore normalcy. It is entirely in this light that one which is progressing at a rapid double
the theory of justice found its origin. digit growth rate, in stark contrast to another
which also houses the largest Below Poverty
The builder of Modern India, Jawaharlal Line population of the world, both in terms of
Nehru was a crusader, when it came to percentage as well as in absolute terms, it is
the inclusion of the Fundamental Rights but obvious that the Access to Justice is yet
which were embodied from the American a distant dream to be achieved. With specific
Constitution. Furthermore, it was not sufficient reference to the underprivileged sections of the
that the individual’s rights have been assorted society, there has been more than one reason
into Part III of the Constitution, their very to fret over:
enforceability was endowed into the hands
of the Apex Tribunals of the country as the a. Poor Implementation of Strategies
guardian Templars of the Holy Cross which
was manifested in the form of Article 32 b. Heavy Dependence on Erratic Monsoon,
and 226 of the Constitution. It was however with no back up plans.
found insufficient, and therefore a categorical
observation was made that in order to live c. Exploitation at the hands of the Have’s.
up to the expectations of the citizens of this
country, it was quintessential that the role of d. Stagnation or Rapid decrement of
the State was to find its guidance from the very Resources.
Constitution. It was in this light that the Directive
3 Background: Access to Justice and Legal Aid
Principles of State Policy were incorporated Services with special reference to specific justice
needs of the underprivileged people: Speaking Threads
from the Irish Constitution which mandated
accessible at http://speakingthreads.org/2015/11/06/
the role of the state, but owing to the severe background-access-to-justice-and-legal-aid-services-
with-special-reference-to-specific-justice-needs-of-the-
resource deficit that the independent India
underprivileged-people/
110
e. Focus on Immediate Relief rather than courts are permanent in nature and cannot be
choosing Self Reliance. taken away by the constitutional amendment,
thus any such amendment would be treated
There may be a host of contributing factors as unconstitutional and under the purview of
for this despicable situation; however what is constitutional court for striking down.
also worth observing is that there is a strong
sense of conditioning that has been a resultant
vector of this continuous oppression. “Right to Free Legal Aid as a
Component of Access to Justice”

“Right to Access to Courts as a Article 39A of Constitution of India confirms


Component of Access of Justice” the “Right to Free Legal Aid”. However, during
consideration of “Judicial Activism” which
Access to justice is often considered as a pioneered by “causa celebre of Hussainara
parallel term to “Access to Courts. In various Khatoon7” and resulted in establishing
pronouncement, the Hon’ble Supreme Court of of “National Legal Services Authority”
India has held that Article 21 of the Constitution instrumented through the “Legal Services
includes the “Right to Access of the Court” Authority Act of 19878” was the starting point
through writ jurisdiction of the courts which is a of assisting poor and ignorant of laws from
legal tool in the hand of citizens of India. Article the side of judiciary known as “Right to Free
32 of the Constitution of India extends the Legal Aid”. It brought the gap short between
power of the Supreme Court to entertain writs socially established rich peoples and the poor
for protection of fundamental rights. In Keshav or illiterate citizens. Before implantation of this
Singh Re4, Supreme Court observed and traced statute, poor was far away from the justice
“The existence of judicial power in that behalf due to costly affair of legal battles. Setting up
must necessarily and inevitably postulate the of National Legal Service Authority under the
existence of a right in the citizen to move the aegis of Supreme Court Justices has become
court in that behalf.” Kesavananda Bharti v. a milestone opening up path for poor people
State of Kerala5 identified “judicial review” is a at their court without paying hefty penny for
tool which is a part of the basic structure of the fighting legal conflictions.
Constitution of India. It was reaffirmed by the
bench of Seven Judges in in L. Chandra Kumar Furthermore, the effect that the setting up
v. Union of India6. It would clearly indicate of National, State and District Legal Services
that the power of judicial review of the Indian Committee has had on people, has been

4 AIR 1965 SC 745. 7 1979 AIR 1369, 1979 SCR (3) 532
5 1973 (4) SCC 225. 8 Legal Services Authorities act, 1987, Government of
6 (1997) 3 SCC 261. India. (No. 39 of 1987)

111
immense. The skeletal provisions enunciated in Under the Causa Celebre of Delhi
the Criminal Procedure Code and the Code of Development Working Women’s Forum v.
Civil Procedure was revived by flesh and blood Union of India, the Supreme Court of India held
as soon as the Seventies witnessed a great that there should be setting up of “Criminal
upsurge in the number of cases filed by the Injuries Compensation Board” (C.I.C.B.) for
destitute, the poor, the impoverished and the compensating tribal women who were raped
seemingly grotesque underdogs of the society. for losing their dignity. Supreme Court of India
It was a combination of the Legislative Will, also directed National Commission of Women
the Judicial Activism and the Executive to act as a body of enforcing powers under its
Commitment which forged an alliance to recommendations.
become the World’s largest free legal Aid
Service Provider. It was according to such momentous
decisions that people’s faith in the Legal System
Such a gigantic institutional change was not is still intact. Implementation of “Legal Services
only specific to infrastructural changes, but Authorities Act, 1987” has become a powerful
was also contemplative of the stance taken by weapon to ensure right to legal aid in India.
the Supreme Court in taking stringent steps to Section 12 of the Act states that “Legal aid will
ensure that Justice is actually done, and not be available both on the means test as well as
merely be seem to be done. Statistics from the merits test”. Legal Aid hitherto extends its
the National Crime Records Bureau suggest supports to litigants with special requirements
an alarming number of almost 85% of the total including custodial persons, children, women,
prisoners to be under trials that have been litigants under SC/ST legislation, working
incarcerated and are waiting for their fate to forces etc. The Legal aid is being facilitated
unfold on them9. Casus Classicus such as on district and taluka level. It also extends its
Rudul Shah or Sunil Batra v. Delhi Administration services at every High Courts and the Supreme
brought in revolutionary changes in the manner Court of India. The primary and foremost work
in which under trial prisoners were to be of the Legal Aid committees include legal
kept. The guidelines that were formulated by representation of underprivileged people,
the Apex Court were in accordance with the counselling and advice to such peoples.
International Treaties and other covenants on
the right to the protection of Right and Dignity
of the Under Trials and the Prisoners. Public Interest Litigation as a
Component of Access to Justice
9 Singh, Ranbir. Access to justice and Legal Aid
for the Marginalized
Services with special reference to specific justice needs
of the underprivileged people. SARC Law accessible at
Public Interest Litigation is another tool
http://www.saarclaw.org/uploads-saarc/publications-
images/1019-FILE.pdf or weapon in our constitutional courts for
112
safeguarding constitutional rights of each and majority of the people of our country are
every citizens of India. The use of this potent subjected to this denial of ‘access to justice’
weapon has been extended to every public and overtaken by despair and helplessness,
spirited citizen who has been aggrieved of they continue to remain victims of an
the wrong being perpetrated to bring it to the exploitative society where economic power is
cognizance of the Court. To that effect, even a concentrated in the hands of a few and it is
letter addressed to the Chief Justice of the High used for perpetuation of domination over large
Court or the Supreme Court will be entertained masses of human beings…… The strategy of
as a Public Interest Litigation. Various educational public interest litigation has been evolved by
and social groups including teachers, advocates, this Court with a view to bringing justice within
non-governmental organizations and publicly the easy reach of the poor and disadvantaged
motivated citizens are taking lead to ring the bell sections of the community.”
at the doorstep of the courts for seeking justice
under public interest.
Legal Aid as a major component
A most prominent example is that of M.C. in providing Access to Justice
Mehta v. Union of India whereby hosts of
Factories which were posing a serious risk Lord Denning observed that Legal Aid is a
to the Yamuna had to either relocate or were system where government is bound to fund for
asked to shut down. Furthermore, in the case delivering justice to each and every community
of Olga Telis, the right to slum dwellers was by removing financial hurdles among citizens.
upheld by the Supreme Court by stating that Legal Aid is a balanced tools imparting social
the Right to Shelter forms an integral part of value for guaranteeing constitutional right
the Right to Life with Dignity, and it is the right protection through legal aid services. Lord
to a dignified Life which has to be restored and Denning said that “The greatest revolution in
upheld by the Courts in this Country. the law since the post-second World has been
the evolution of the mechanism of the system
Under the pronouncement of Hon’ble for legal aid. It means that in many cases the
Supreme Court of India in Bihar Legal Support lawyers’ fees and expenses are paid for by the
Society v. The Chief Justice of India & Ors.10, state: and not by the party concerned. It is a
the court observed that : subject of such importance that I venture to
look at the law about costs-as it was-as such
“The weaker sections of Indian society have it is-and as it should be.”11
been deprived of justice for long years; they
have had no access to justice on account of
their poverty, ignorance and illiteracy. …..The 11 What Next in the Law: Lord Denning, London
Butterworths, 1982.
10 1987 AIR 38, 1987 SCR (1) 295
113
The fortieth para of the Charter of Magna Carta
the preservation of this right at each and
states that
every level. Legal aid is not considered as a
“To no one will we sell, to no one will we charity but it is a constitutional rights of each
deny or delay right or justice.” and every citizen for which government is
bound to expedite under welfare state. The
To evolve at an all-encompassing and problems of human law and justice, guided
pan inclusive definition of Legal Aid is a by the constitutional goals to the solution of
major problem, as the problems for which disparities, agonies, despairs, and handicaps
legal services are required for are numerous. of the weaker, yet larger brackets of Bharat’s
An attempt, however, has been made by humanity12 is the prime object of the dogma of
considering Section 2(1)(c) of the “Legal “equal justice for all”. Thus, legal aid attempts
Services Authority Act, 1987” specifies that confirming constitutional pledge is contented
“Legal Service” includes the rendering of any in its letter and spirit and equal justice is made
service in the conduct of any case or other legal available to the subdued and weaker sections
proceeding before any court or other authority of the society.13
or tribunal and the giving of advice on any legal
matter; To provide free and competent legal Justice Krishna Iyer considered Legal Aid
services to the weaker section of the society as a Catalyst enabling the aggrieved masses
was the basic object of enacting the aforesaid to re-contend responsibility of the state.
Act. Justice - social, economic and political, However, Justice P.N. Bhagwati considered
is our constitutional pledge enshrined in the legal aid as “equal justice in action”. But, the
preamble of our Constitution. The incorporation Constitution of India not being a skin of sheep
of Article 39-A in the Directive Principles of but a bundle of commitment clauses which
State Policy in the year 1976, enjoined upon have to be decoded for better and peaceful life
the State to ensure justice on the basis of of the Indian people14 which has to be taken
equal opportunity by providing free legal aid”. care by the judiciary at each and every stage.
The judicature on one side, while establishing
Legal Aid is a right conferred under the the law on legal aid have only considered it on
Article 39-A “At thereby being a Directive the basis of encyclopedic view. Time to time
Principles of state Policy” however, it must not our courts have reiterated about the status of
be messed up with not included in fundamental legal aid as considered under the Fundamental
rights. The law of Legal Aid, in view of right to Rights under Article 21 and also under Article
representation and the right to speedy trial
12 Report on National Juridicare: equal justice – social
ensured under the very right to life and liberty justice,1977, Government of India.
13 Chopra R C, Legal Aid Movement in India-Its
is now being considered as constitutional
Development and Present Status, http://causelists.nic.
rights. The court under its obligation has the in/nalsa/
14 Report on National Juridicare: equal justice – social
duty facilitating, promoting and ensuring
justice,1977, Government of India
114
14 and Article 22(1)15. The apex court has students to specialize in various aspects
held access to justice as a human right, thus, of the law during their education itself in
imparting life and meaning to law. Under order to create a pool of talent based on
his vision statement on Second Generation domain expertise and core competence.
Reforms in Legal Education, Hon’ble Law A continuous focus on social responsibility
Minster for the Government of India visualized and a strong professional ethic during
a threefold policy framework as Expansion, every step of the educational process –
Inclusion and Excellence was underscored and every practitioner should have an unfailing
conceptualized. commitment to the integrity and working of
the legal system – reinvigorate the oversight
(a) “Expansion will focus on a multi-disciplinary mechanism for professional misconduct in
approach encouraged across the board order for it to take swift action, including
to enable more students to access debarring those that violate professional
affordable and quality legal education. An ethics and standards of the profession.”
efficient justice system plays a vital role
in our economic development – reducing The Law Commission of India in its 184th
pendency’s alone can add about 2% to our Report has elucidated and underscored the
GDP – and it is our legal education system need for drastic remedial steps to be taken
that will provide the manpower to fuel this in order to bring transformation in the way
required efficiency.” Legal Education has been perceived and
implemented, including revamping changes to
(b) “Inclusion will focus on creating a system the core structure of implementation in Legal
by which a first generation lawyer from a Education. It was also for the very first time that
backward and poverty stricken class can it was realized that a mere declaration to that
rub shoulders with the best of the best at effect will not suffice, what was needed was
the national level by way of establishment also a series of concerted actions taken by The
of a National Law Library that can also be Bench, the Bar, the Legal Academia and the
accessed by all citizens online.” Legislators in order to do their part to instill and
inculcate the spirit of Social Engineering into
(c) “Excellence will focus on identifying the next Generation of Lawyers.
and nurturing talent by providing every
opportunity to every individual wishing to
be a student of law: An opportunity for Challenges to the Access to
15 Hussainara v. Home Secretary, State of Bihar, AIR Justice in India
1979 SC 1377., Khatri v. State of Bihar, AIR 1981 SC
928, Suk Das v. Union Territory of Arunachal Pradesh,
Indian democracy as a biggest in the world,
AIR 1986 SC 99, Kishore v. State of Himanchal
Pradesh, AIR 1990 SC 2140. also face several challenges in the form of
115
access to justice. The Ratio of judges with in action for enhancing the status of law, legal
its population and explosion of dockets over system and obviously legal profession.18
judicial officers give contradictory views over
judicial process and justice delivery system in In one of the articles penned by Mr. Bloch and
lieu of judicial efficiency. India being a country Mr. Iqbal Ishar19, it has been espoused by the
having dissimilarity in its socio and economic learned authors that the nature of obligation that
conditions, legal profession has greater has been imposed on the lawyers practicing in
responsibility to facilitate justice irrespective India is purely moral as per the Bar Council of
of financial or geographical status of its India rules continue to require the members of
population. “The professional obligation of the the profession only to bear in mind in the practice
Bar behooves it to help the poor in a country of law that “within the limits of an advocate’s
of poverty.”16 The “Expert Committee on Legal economic condition, free legal assistance to the
Aid rightly” pointed out “access to the Courts indigent and oppressed is one of the highest
would be illusory unless representation of the obligations an advocate owes to society.”20 This
under-privileged by counsel is recognized as a obligation of advocates to render legal aid is
professional mandate.”17 only moral, and, in the absence of machinery
put in place by which an advocate could be
In United States, the rules pertaining to pro made to discharge this obligation, it is easily
bono verito services has been recognized as possible for advocates who are so minded
a non-mandatory obligation, amongst the to evade their pro bono obligations. More
lawyers, vide Rule 6.1 which declares that conscientious members of the profession have
every lawyer has a professional responsibility been providing assistance and representation
to provide legal services to those unable to on a purely voluntary basis to clients with limited
pay, but this responsibility is only aspirational or no means, often without assignment by any
not legally binding. It then states that “[a] lawyer legal aid organization. However, these individual
should aspire to render at least (50) hours of pro efforts are said to suffer from an air of charity,
bono publico legal services per year,” and in
18 The comment to ABA Model Rule 6.1 says that
fulfilling this responsibility should provide legal “States, however, may decide to choose a higher or
services at no fee or a substantially reduced fee lower number of hours of annual pro bono service.”
MODEL RULES OF PROF’L CONDUCT R. 6.1. The
to any of a wide variety of recipients, including New York version of Rule 6.1 includes the following:
persons of limited means, or should engage “Every lawyer should aspire to: (1) provide at least 20
hours of pro bono each year to poor persons; and (2)
contribute financially to organizations that provide legal
16 V.R.K. Iyer, Social Mission Of Law 131 (1976). services to poor persons.” N.Y. RULES OF PROF’L
See Also V.R.K. Iyer, Law, Society And Collective CONDUCT § 1200.45(d) (2010) (emphasis added).
Consciousness 68, 86 (1982); Menon, Lawyer In The 19 Legal Aid, Public Service And Clinical Legal
Adjudicative Process." An Appraisal Of Section 30 Of Education: Future Directions From India And The United
Advocates Act, 1961, 8 J.B. Council Of India 105, States, [Vol. 12:92] Michigan Law Review.
107(1981); Anand, General Principles Of Legal Ethics 20 Rule 39.B of the Bar Council of India, under authority
204-05 (1965). of the Indian Advocates Act,1961 (quoted in the Expert
17 Supra Note 51. Committee Report, supra note 8, at 176).
116
and the legal profession as a whole has been sheer number of cases undertaken by them
castigated for not undertaking a public legal aid becomes so huge, that redressal of their clients
and advice program in an organized manner”.21 apathy, and the very notion of his adequate
representation falls into grave jeopardy.
The author is unable to take this argument
in its entirety for the BCI Regulations have The last class of lawyers is comprised of
been designed on a pragmatic basis. Should those who actually work for the benefit of the
proper incentives for cases pertaining to Legal client and to secure to him the values that
Aid matters were to be adopted there would have been pithily surmised in the constitution,
be a competent representation of clients. In a right to which he has proprietorship is denied
India, there are three categories of lawyers at to him by all quarters. Needless to admit any
all levels which deal with cases pertaining to argument that such lawyers are very few in
Legal Aid matters. The first category belongs number, owing to the insurmountable number
to those lawyers who take up such cases as of litigants that cluster around the doorsteps
part of their social responsibility, and promise to justice. If a change has to be made then it
to give adequate representation to their clients has to be such, hence with sufficient so that
who are usually indigents. These lawyers have adequate stimulant may be facilitated for cases
a very good practice, and do so as part of their where legal aid is taken up as the obligation
community responsibility. However, there have of the State. Rule 8(9) of NALSA (Free and
been instances during the work being carried Competent Legal Services) Regulation, 2010
out in Tihar Jail Complex wherein the poor states that “the amount stipulated payable
indigents who are incarcerated hold visiting per month to Lawyers who are called Retainer
cards of some very influential lawyers, however Lawyers or solely committed to the cause of
they have not seen their clients for the past fighting Legal Aid cases, is a mere sum of Rs.
four years, to quantify the least, leaving the 5000 p.m. for District Legal Services, Rs. 7500
destitute to linger on the faint light of hope. p.m. for State Legal Services, and Rs. 10,000
p.m. for Supreme Court Legal Services”.22 This
The second category of lawyers who take amount is payable to those lawyers who are
up such matters are those whose practice exclusively empaneled for the purposes of
is not able to earn them a proper living, the Legal Aid Work and due to the over burden
idea therefore is to thrive on the remuneration of cases have to deal with those cases solely.
paid by the Legal Services Authority and There is an urgent requirement of incentivizing
earn it on a case to case basis. Discrediting legal aid work and to promote it amongst
the very argument of their competency, the the advocates refraining to enter in the legal
profession due to financial problems.
21 Desai, Role And Structure Of Legal Profession, 8
J.B. Council Of India 112 (1981); V.R.K. Iyer, Law Versus 22 Vide Regulation 8(9) of NALSA (Free and Competent
Justice 167 (1981). Legal Services) Regulation, 2010.

117
Recognition of the Instrumental legal aid programme educates online real-
Role to be played by the Law time skills to the students along with aiding the
Schools in India persons those in actual have need of such legal
Currently twenty One law schools have been help. The biggest misconception till date is that
set up in India. The law students play a very vital Clinical Legal Education or Pro Bono Verito
role assisting thousands of poor citizens as a Services is a subject of academic importance
client. However this legal aid assistance through only. What legal luminaries fail to observe is that
legal aid clinic set up in various law schools in it is not a subject during the last years of a law
India is very less in number but surely extend school curriculum, but it is a value system that
their support to a number of incomparable has to be ingrained into every single individual
services. A number of legal problems are from the moment a fresher enters into a law
being provided by the clinic students in law school.
schools such as “avoiding homelessness,
avoiding or reducing time in prison, obtaining “Little attention is paid to synthesis, either
disability benefits, securing the right to remain of bodies of substantive law or lawyering
in the United States, obtaining safety from a techniques that might help the student
threatening spouse.”23 They reflect a reality understand how the law lives and the lawyer’s
that many “elite” law faculties in the United role in bringing it to life. Law schools generally
States now have significant contingents of do not do a good job of teaching students how
“impractical” scholars, who are “disdainful of to gather and digest facts that are not neatly
the practice of law.” This also holds true for Law packaged; identify the range of solutions, legal
Schools in India where the law schools have and non-legal, that might apply; determine
over emphasized on theoretical knowledge what the limitations of a given forum might be
which is devoid of any practical application and determine how best to work within that
whatsoever. forum; counsel a client; and negotiate with an
opponent”.25
On the other part of social benefits, clinical
courses extend professionals as well as It is therefore significant to provide for an all-
ethical skills of the students of law schools inclusive model of education which is based on
viz.:“provision of competent representation; social values and which is reflective of the term
promotion of justice, fairness, and morality; “Social Engineer”. The humungous role that
continuing improvement of the profession; and can be played by law students in this regard
professional self-development.”24 The clinical has been exhibited by a few National Law
Universities. The pioneering work of the Legal
23 Philip G. Schrag & Michael Meltsner, Reflections on
Clinical Legal Education 5 (1998).
24 American Bar Association Section on Legal Continuum, Report of the Task Force on Law Schools
Education and Admissions to the Bar, Legal Education and the Profession: Narrowing the Gap 207-21 (1992).
and Professional Development - An Educational 25 David A. Binder & Susan C. Price, Legal Interviewing
and Counseling: A Client-Centered Approach (1977).
118
Aid Committee of the NLU Delhi made use of the legal profession.”26 “Legal aid is a national
Section 32 of the Advocates Act to appear necessity and a constitutional imperative in
before the Court of Law and secured release India”;27 massive poverty and illiteracy make the
of over 10 prisoners incarcerated in the prisons task gigantic. The nature of legal aid programs
across India. Another significant contribution has determined the shape and activity of law
has been made by the National University of school clinics; the educational benefits of
Juridical Sciences which has commenced its clinical activity are merged with, incidental to,
project called Shadhinota which is aimed at and not more important than the mission of
integrating all the legal aid cells in the Country contributing to the national cause of legal aid
and to effectuate a corpus system of free service. Thus, the view is shared widely in India
legal aid services by law school students by political leaders, legal educators and many
and teachers. It is to this effect that the role lawyers and judges that law students can and
played by the law schools has to be given due should take a leading role in providing legal aid
consideration and recognition, as it will solve and assistance to the poor.
dual purpose, it would bring Justice to the
doorsteps of the impoverished litigant, while
enabling a student to learn and be the practical Solutions to the Challenges
lawyer, well conversed with the intricacies of posed in Access to Justice
the system, and more importantly sensitized
with the pain and agony of the pauper, who It can be unequivocally contested that in
has to reel under tremendous emotional, order to ensure that access to justice is not
physical and financial trauma to fight that one a mere myth, or a semantic jargon, what
case of his life. needs to be done is a collaborative effort of
the Bar, the Bench, the Legal Academia and
Furthermore, by taking part in the Alternative the Law Students in order to promote facilitate
Methods of Dispute Resolution such as and propagate the cause for clinical legal
Mediation, Conciliation and Nyaya Panchayats, education, and legal aid work so that Justice
the students can ensure an expedient and
26 Resolutions Of The 12th All India Law Teachers
speedy disposal of cases. Conference, 2 Delhi L. Rev. 291 (1973) (Resolution No.
Ii); Jethmalani, Objectives Of Legal Education, In Legal
Education In India 52, 56-57 (S. Agrawala Ed. 1973)
Most members of the Indian legal community (The Views Of Mr. Jethmalani, The Then Chairman Of
- law teachers, the bar, the bench, legal aid The Bar Council Of India); Expert Committee Report,
Supra Note 8, At 155-64; Juridicare Report, Supra Note
experts agreed that “law schools should play 8, At 66-74; Sangal, Legal Services Clinic: Director's
an active role in the country’s fledgling legal aid Report, 1975-76, 4 & 5 Delhi L. Rev. 193, 195 N.2
(1975-76) [Hereinafter 1975-76 Delhi Report] (Statement
movement, believing that isolation or exclusion Of The Then Prime Minister Of India While Inaugurating
of law schools from legal aid programs would be The Indian Council For Legal Aid And Advice In 1975
And The Resolution Of The 1975 National Seminar On
self-defeating for legal aid, legal education and Legal Aid And Advice).
27 Supra Note 28.
119
can also be manifestly done. As Justice Holmes not given to the students who are willing to
has surmised, what Law is to Lawyers, Legal participate because of their seniority.
Education is to Law Students. It is therefore
very pertinent that there has to be a change Students in first and second year of Five Year
in the way Legal Education is imparted. It is Programme rarely get a chance to participate in
not only the role of the teachers to further Legal Aid Activities, although they are inducted
this cause, but it also vests a great deal in as members of the legal aid committee of their
students. Contrary to its western counterparts, respective colleges.
Legal Education in India was not regarded as
priciest of professions as the gestation period In order to counter this problem, one has
was long. With the advent of 21st century, this to see the very conception of what all is
trend has reversed, where students choose included within the ambit of Pro Bono Verito
law not as a matter of chance but as their very Services. Pro Bono Verito Services includes
choice. However, much needs to be done. and is not restricted to Mediation, Conciliation,
Negotiation, Client Counseling, Legal Drafting,
Another point which is very pertinent to the Drafting for Policies, Prison Advocacy
ongoing debate is the attitude of Law Students Programs, Legal Literacy, Legal Awareness,
who take up Pro Bono Legal Services. The Organizing Legal Aid Camps, Working with Civil
students could be categorized into three Societies that provide for Legal Aid, Assisting
denominations when it comes to opting for Lawyers and Firms that take up Legal Aid
Legal Aid Programmes. Category A comprises Work, to name a few28.
of those students who wish to enter into
corporate law jobs and therefore Legal Aid to A proper segregation of work can be
them is futile, as it has no academic credentials done with respect to pro bono verito work,
attached to it. Category B comprises of those whereby students in the first year can work
students who wish to take up Legal Aid Work on legal empowerment, capacity building
because it earns them brownie points when of other individuals in rural, semi urban, and
applying for an LLM Degree in any of the Law urban sectors by spreading legal awareness.
Schools abroad, for due regard is paid to those Whereas other specialized category of work
students who have had some experience in such as ADR and Client Counseling can be
such sectors, The final category is comprised taken up by students of second and third
of those students who are committed to the year. In such a way, every student can actively
cause, and work for the betterment of the
28 Ahuja, Sanjeev K. (2017). Poor to getn free of cost
society rather than looking up to it as a means
legal aid, govt urges lawyers to office pro bono service.
of upgrading their resume. However, another The Hindustan Time. New Delhi Accessible at http://
www.hindustantimes.com/india-news/poor-to-get-free-
implicit quandary is that due opportunity is
of-cost-legal-aid-govt-urges-lawyers-to-offer-pro-bono-
service/story-Szq2i16wd8eo9L8s789IRL.html

120
participate in the way Pro Bono Work has to be Website Id and pick out relevant material that
accomplished. Furthermore, in addition to this could help him build his case as he does not
division, stress should be given on including understand the finer intricacies of the subjects
academic credit so that the students who take involved. A lawyer, on the other hand would not
it up are incentivized. browse through individual research materials,
as replete as they might be, on these individual
websites, thereby heavily constricting the
Being Tech Savvy scope of his research. The problem therefore
is not the unavailability of research solutions,
Although it has been noted for some time the problem is the unavailability of a common
now, the utility of the Internet for providing legal platform wherein all such solutions could be
information - and as far as other possibilities classified according to Subjects, which can
are concerned - one only has to visit the web either be searched just like a Google search
pages of a number of CLCs to realize that engine or be a click and open feature.
many of them contain little more than basic
contact details. Such a trend is universal. As far as it regards the literate section of the
The details that are mentioned in any of the society, features can be provided for by using
cells be it the Website of the Apex Court, i.e. Social Networking websites such as Drupal,
Supreme Court or the Nalsa or State Legal YouTube, Facebook etc. so that a basic legal
Service Authorities is only constrained to the awareness could be carried out to them at
names of the Honorable Members who are their doorsteps. Social Networking Sites have
spear heading these offices and discharging proved to have catalyzed socio- politico –
the duties, and their permanent addresses, cultural revolutions that have shaken roots
to which a poor indigent has no use. What is in countries like Syria, Egypt, Tunisia, Libya,
important is therefore, the mechanism which Sudan, Greece, United States, Ukraine, and
has to be provided for in the form of a flow England to name a few. With estimates totaling
chart, or any other method which is easy to over a Hundred Million internet users who
comprehend and is bereft of unnecessary belong to India by the end of 2011, with roughly
complications. 43.5 Million users accessing Facebook29, the
prospective of Facebook and other social
In Indian perspective, the same trend has networking websites emerge as potent tools
been noticed in all the established law schools of information dissemination.30
that have developed their own E- Research
Cells. However there is a two pronged
29 Estimates taken from Internetworldstats.com,
complication. A litigant, assuming that he is accessed on 21st February, 2012.
computer illiterate, would not know how to 30 Estimates taken from socialbaker.com, accessed on
21st February, 2012.
browse through the University’s individual
121
Major Tool in the Shape of was accused of, he is bound to be released on
Section 32 of the Advocates Act, bail with or without sureties.
1961
However, what is also of significance is the
To the extent of representing any of those limit to which this right can be extended. A
persons that are specified in Section 12 of ground breaking potent weapon that the Indian
the Legal Services Act, 1987, section 32 Judiciary had evolved was the inception of Public
of the Advocates Act, 1961 is of primordial Interest Litigation in India that has liberalized
significance for students who are willing to the rule of locus standi to a considerable level.
represent their clients in a court of law. The Under the banner of Public Interest (or Social
most important benefit that this section Action) Litigation (PIL) and the enforcement
provides for is that it identifies any person who of fundamental rights under the Constitution,
can represent in any case or matter, the only the courts have sought to rebalance the
prerequisite being that such person has to take distribution of legal resources, increase access
leave to appear from the Magistrate and upon to justice for the disadvantaged, and imbue
his permission can he represent his client.31 formal legal guarantees with substantive
and positive content. “Originally aimed at
A pertinent instance of manifesting this right combatting inhumane prison conditions’32 and
endowed in the hands of every student is the the horrors of bonded labor,33 public interest
recent Tihar Advocacy Project which has been actions have now established the right to a
carried out by the Students of the National Law speedy trial,34 the right to legal aid,35 the right
University, Delhi whereby bail is secured for all to a livelihood,36 a right against pollution,37 a
those incarcerated under trials who have been right to be protected from industrial hazards,38
imprisoned for an offence for which they have
32 Sunil Batra v. Delhi Administration, (1978) A.I.R.
already spent more than half period of the total 1978 S.C. 1675, Upendra Baxi v. State of Uttar Pradesh
maximum imprisonment term for which they (1983) 2 S.C.C. 308.
33 People's Union for Democratic Rights v. Union of
have been accused of an offence. By invoking India, A.I.R. 1982 S.C. 1473; Bandhua Mukti Morcha
Section 436 – A of the Code of Criminal v. Union of India, (1984) 3 S.C.C. 161; A.I.R. 1984 S.C.
802.
Procedure, 1973, upon the discretion of the 34 M.H. Hoskot v. State of Maharasta, (1978) 3 S.C.C.
Magistrate, without going into the merits of the 544, A.I.R. 1978 S.C. 1548; Hussainara Khatoon v.
Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1360;
case, if an under trial has spent more than half 1369;1377.
of the total imprisonment term for which he
35 Suk Das v. Union Territory of Arunachal Pradesh,
(1986) 4 S.C.C. 401; Sheela Barse v. Union of India,
31 Section 32 of the Advocates Act, 1961 Power
A.I.R. 1983 S.C. 378.
of court to permit appearances in particular cases.-
36 Olga Tellis v. Bombay Municipal Corporation, (1985)
Notwithstanding anything contained in this Chapter, any
3 S.C.C. 545.
court, authority, or person may permit any person, not
37 Rural Litigation and Entitlement, Kendra, Dehradun v.
enrolled as an advocate under this Act, to appear before
State of Uttar Pradesh, A.I.R. 1985 S.C. 652.
it or him in any particular case.
38 M.C. Mehta v. Union of India, (1986) 2 S.C.C. 176.
122
and the right to human dignity.”39 High Courts and the Supreme Court.

Justice Krishna Iyer surmised this proposition


in the following manner: Law Firms participating in Pro
Bono
“Test litigations, representative actions,
pro bono publico and like broadened forms A number of law firms have participated as
of legal proceedings are in keeping with the signatory with “Law Firm Pro Bono Challenge”.
current accent on justice to the common man It is an initiative of American Bar Association
and a necessary disincentive to those who which was launched in 1993. Currently it is
wish to bypass the real issues on the merits working under the aegis of “Pro Bono Institute”
by suspect reliance on peripheral, procedural situated at Georgetown University Law Center.
shortcomings... Public interest is promoted It encourages the signatory law firms to assist
by a spacious construction of locus standi poor or financially deficient persons under
in our socio-economic circumstances and policy atleast 3 to 5 per cent of the billable
conceptual latitudinarianism permits taking hours.41
liberties with individualization of the right to
invoke the higher courts where the remedy is All State Bar Association in United States
shared by a considerable number, particularly offer “Annual Awards” to the law firms for
when they are weaker.40 recognizing their work in pro bono activities
(Rhode 2005). The award information is
What is envisioned is an amalgam of this visualized on the webpage of award winning
power that can be read with section 32 of the law firms. A number of advocates are required
Advocates Act, whereby a student can act as by the state interested to perform pro bono
a public spirited citizen, and therefore he shall hours. If the same trajectory can be followed
not be restricted to putting up appearances in India, then Law Firms and not just lawyers
only at the trial stage, he can also file writ can realize that they owe a responsibility to the
petitions which shall be treated as PIL, wherein people in India. It would further be an incentive
and whereby he can argue before the Hon’ble for the law students who take up placements
with such law firms.
39 Francis Coralie Mullin v. Administrator, Union Territory
of Delhi, (1981) 2 S.C.R. 516
40 Mumbai Kangar Sabhha v. Abdulbhai, A.I.R. 1976
S.C. 1455. 41 Robert Granfield, The Meaning of Pro Bono:
Institutional Variations in Professional Obligations among
Lawyers, Law & Society Review, Volume 41, Number 1
(2007).

123
Conclusion
Assertion: Assist and facilitate those people
What is therefore envisioned is a common to assert those Rights as a matter of “Right”
platform whereby the law schools can help rather than a conferment or a bestowal of
raise Legal Awareness in schools and colleges. some benefaction.
Other students can also help in various legal
aid programmes be it client counseling, Adequate Arrangements: Once Objective
mediation, negotiation, prison reforms, legal 1 and 2 are secured, the State shall make
drafting, policy making, or assisting firms adequate arrangements so that these rights
or lawyers in their pro bono verito matters. are rightfully given to those who assert them.
The endeavor is to bring together all the flag
bearers of Legal Insignia to move towards a Let Access to Justice not be an experiment
collaborative cohesive unison so that justice for a law school to try its hands on, let it be a full
may be secured for those who dream of it. fledge realization of every law school to do its
part for the betterment of our country, let it be a
The framework should strive to achieve the motivating force for every student to strive and
following three A’s. live upto the ethos of Justice for all, let it be a
calling for every lawyer to facilitate and promote
Awareness: Empowering people by letting the young legal minds by their able guidance
them become aware of their rights and so that the very tenets of professional ethics
powers and the way to secure those rights to and civic responsibility are not constricted to a
themselves. mere rule book.

*******

124
The Doctrine of the Invisible
Constitution: A Relook at the
Basic Structure Doctrine in
the Context of Unenumerated
Fundamental Rights
Parag P. Tripathi* & Neelima Tripathi**

I. INTRODUCTION TO THE
watershed years from the 1970s to
INVISIBLE CONSTITUTION
about 1990. The focus shall be on
1. The ability to write marks a watershed in aspects of far reaching Constitutional
the development of the human race. It jurisprudence which commenced with
requires the development of language as the epochal Kesavananda Bharati1, the
a method of communication of thoughts, case which ‘created’ the concept of a
of a grammar to go with it and a medium Basic Structure of the Constitution, as
to write on. Over the time, writing has being not amenable to any Constitutional
been used as an instrument to bring clarity amendment (notwithstanding Article
and certainty in dealing with contractual 368), and the aftermath thereof. This was
relations. Therefore, when a codification the ‘Basic Structure’ moment of Indian
of Rule of Law was attempted with the Constitutionalism. To quote Prof. Upendra
Magna Carta written on a parchment, the Baxi2:
concept of a written Constitution took root.
* Senior Advocate, Supreme Court of India.
The first well known example being the US
** Advocate, Supreme Court of India.
Constitution which continues to serve with The present article uses part of the course material of
distinction one of the most powerful Rule the LL.M. classes conducted jointly by the authors. The
authors also acknowledge the good assistance provided
of Law democracies of the world. by Mr. Srinivasan Ramaswamy (Advocate, Supreme
Court) in obtaining the additional source materials for
this Article.
2. We will in this Article be dealing with
1 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
the aspect of the Invisible Constitution 225.
in the context of Indian Constitutional 2 See Upendra Baxi, ‘The Constitutional Quicksands of
Kesavananda Bharati and the Twenty-fifth Amendment’
jurisprudence focusing on the earlier in FUNDAMENTAL RIGHTS CASE: THE CRITICS
SPEAK!, Eastern Book Company (1975) p. 130.
125
“For a long time to come, the Indian Judiciary, ought to be treated as no more or no less than
constitutional scholarship and above all the a statutory law, and therefore, must pass the
Indian polity are likely to be consumed by the muster of all Constitutional provisions including
magnificent obsessions created by the eleven that of the fundamental rights. The intellectual
opinions of the Supreme Court in the historic vulnerability of this interpretation stood exposed
Kesavananda Bharati’s Case. The many varied by the Telang Memorial Lectures of 1971
and profound questions it raises – the place delivered by a leading critic.4 The Parliament
of judicial review in a democratic society being responded to the Golaknath judgment by
the principal among them – will have to be amending Article 368 of the Constitution by
answered with the chill of reason rather than the 24th Constitutional Amendment.5
with the passion of a moment.”
4. Subsequently when the issue was
3. From 1970s onwards, there is broadly a raised, the Supreme Court revisited its
period of about two decades or so which view and overruling Golaknath, held that
saw extraordinary intellectual output of Constitutional amendment is different
great innovative skill engineered by the compared to a mere statutory provision,
Indian Supreme Court in the context of but went on to add that it is nonetheless
the tension between the Political Executive subservient to a brooding omnipresence
and the Judiciary and later on between called the ‘Basic Structure’ which
the Parliament itself and the Judiciary. The
4 Dr. P.K. Tripathi, SOME INSIGHTS INTO
National Emergency which was announced FUNDAMENTAL RIGHTS, Kashinath Trimbak Telang
Endowment Lectures, N M Tripathi Publication Private
by a Presidential Proclamation under Article
Limited (1972).
359 of the Constitution on June 26, 1975, 5 Article 368 which originally was a part of the
Constitution read as follows:“Procedure for amendment
and which was eventually lifted on March
of the Constitution- An amendment of this Constitution
21, 1977 suspended or rather eclipsed the may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the
trinity of Articles 14 (Equality before Law),
Bill is passed in each House by a majority of the total
Article 19 (Fundamental Freedoms) and membership of that House and by a majority of not less
than two-thirds of the members of that House present
Article 21 (Protection of Life & personal
and voting, it shall be presented to the President for his
Liberty), which in a sense was the core of assent and upon such assent being given to the Bill, the
Constitution shall stand amended in accordance with
the Indian Constitution.
the terms of the Bill.”

This is a period which commenced with the After the 24th Constitution Amendment, 1971,
the amended Article 368 read as follows:
Golaknath judgment3 (1967) still being good
“Power of Parliament to amend the
law, wherein the Supreme Court in effect Constitution and procedure therefor- Notwithstanding
declared that a Constitutional amendment anything in this Constitution, Parliament may in exercise
of its constituent power amend by way of addition,
variation or repeal any provision of this Constitution in
3 Golaknath v. State of Punjab, AIR 1967 SC 1643. accordance with the procedure laid down in this article.”

126
was beyond the pale of Constitutional that there is a vital distinction between a
amendment. So the anti-majoritarian Constitutional amendment and an ordinary
function of the Court which comes into law. This distinction was that while the
play when a Court strikes down a legislative Constitution as an Apex Law is akin to
measure was raised to another level, not the Kelsonian ‘grundnorm’ and the other
witnessed anywhere else in any other is a statutory enactment which traces its
Constitutional polity. What constituted the source to the ‘grundnorm’.
Basic Structure was to be determined by
the Apex Court on a case by case basis, 6. For this, the Supreme Court relied copiously
a state of affairs which was again unique on the 1971 Kashinath Trimbak Lectures,
to India. That is not to say that the Basic though without noticing the source.8 The
Structure construct is something which is Supreme Court however retained the flavour
totally alien to the Constitution because of Golaknath by making the tests of Articles
that ultimately depends on jurisprudential 14, 19 and 21 to apply to Constitutional
innovation. However, the Basic Structure amendment by elevating the core of these
doctrine remains a high moment of the articles into the Basic Structure Doctrine
Indian Apex Court seizing a “heroic mantle which in turn was placed beyond the pale
of history”6 and developing a concept which of Constitutional amendmentory process.
has stood the test of time in India. Mr. Anil So in a sense there was intellectual
B. Divan who was then a junior member of repackaging of a vulnerable Constitutional
the legal team in the Kesavananda Bharati argument in Golaknath into an innovative
case tells us that the moment was seized and vigorous argument based on the
in a substantial part by the gifted oratory of construct of the Basic Structure. That this
Mr. Nani Palkhiwala, the lead counsel for Basic Structure was not there anywhere in
the Petitioners.7 the Visible Constitution and was certainly
not there even within the trivially Invisible
5. What the Supreme Court did in Constitution is obvious. No wonder,
Kesavananda Bharati was to convert the critiques have called it not merely law
vulnerable Golaknath argument into an making but a Constitutional amendment in
argument at a different plane by accepting the guise of Constitutional interpretation.
That having been said, it in no manner
6 Laurence H. Tribe, ‘THE INVISIBLE CONSTITUTION’
Oxford University Press, 17 (2008). detracts from the sheer innovation and
7 Anil B. Divan, ON THE FRONT FOOT- WRITINGS intellectual prowess of the idea, which in a
OF ANIL DIVAN ON COURTS, PRESS AND
PERSONALITIES, Universal Law Publishing Co., (2013) way had come to age.
p. 243; Also See Generally, T.R. Andhyarujina, THE
KESAVANANDA BHARATI CASE: THE UNTOLD STORY
OF STRUGGLE FOR SUPREMACY BY SUPREME
COURT AND PARLIAMENT, Universal Law Publishing 8 supra note 4.
Co., (2011).
127
II. The Invisible Constitution:
constitutional limitations on the State and its
An American Perspective
Instrumentalities. Often, such attempts by
7. Prof. Laurence H. Tribe9 in his influential the Superior Courts and by the Apex Court
book ‘The Invisible Constitution’10 points are praised as the Court’s “heroic seizing
out that whilst certain aspects of the written the mantle” of history.11 Some interesting
text of the Constitution may be quite clear, examples of this seizing the heroic moment
there will be other provisions where the in the Indian Constitutional jurisprudence
written text may not be the whole story. To are the landmark judgments on Basic
interpolate his ideas in the Indian context, Structure,12 the counterintuitive and in
we can say that there are certain provisions the face of text, context and Constituent
of the Indian Constitution (as with all written Assembly Debates the incorporation of
Constitutions) which convey their meaning Due Process in Article 21,13 and the judge
with near absolute certainty. For instance, made construct of the Collegium system
Article 84(b) of the Constitution requires that of judicial appointments.14 The United
to be qualified to contest a Parliamentary States Constitutional jurisprudence also
election, a person should be “not less than had such moments of the Courts seizing
25 years of age”. The problem arises when the “mantle of history” in the celebrated
the entire text is not so visible in the explicit cases of Marbury v. Madison,15 where
expression, as for instance, in Article 19(1) Chief Justice John Marshal while allowing
(a) which refers to “freedom of speech and the Federal Government to succeed in
expression”. But, it may not require a great defending the particular litigation before
intellectual acuity to conclude that it would the Court enunciated the principle of
encompass within its sphere, ‘Freedom of Judicial Review, something which was
Press’ as well. In that sense, it would fall definitely beyond the outer edges of the
within the invisible zone because ‘Freedom Invisible Constitution, and much later in
of Press’ is not expressly mentioned in the school desegregation case of Cooper
Article 19(1)(g) itself. Prof. Tribe calls it “the v. Aaron16, where the Supreme Court held
trivially invisible zone”. However, the edges that its earlier landmark ruling in Brown
of this trivially invisible zone can often get
11 See generally supra.
blurred. The problem arises when one
12 Kesavananda Bharati v. State of Kerala, (1973) 4
clearly goes beyond even the edges of SCC 225.
13 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
the trivially invisible zone and proceeds
14 S.P. Gupta v. Union of India, (1981) Supp SCC 87;
to interpret and tease out unenumerated Supreme Court Advocates on Record Association v.
Union of India, (1993) 4 SCC 441; Special Reference
fundamental rights and unenumerated
No. 1 of 1998, In re, (1998) 7 SCC 739; Supreme Court
Advocates on Record Association v. Union of India,
9 Carl M. Loeb University Professor and Professor of (2016) 5 SCC 1.
Constitution Law at Harvard Law School. 15 Marbury v. Madison, 5 U.S. 137 (1803).
10 Laurence H. Tribe, ‘THE INVISIBLE CONSTITUTION’ 16 Cooper v. Aaron, 358 U.S. 1 (1958).
Oxford University Press, 17 (2008).
128
v. Board of Education17 was itself the of persuasiveness to be within the trivially
supreme law of the land. Article VI of the invisible zone. It is clearly an unenumerated
American Constitution accords the status provision, apparently deliberately so, of the
of the “supreme law of the land” only to Constitution, and was never either raised or
the Constitution of United States and laws discussed in the Constituent Assembly. The
made in pursuance thereof and to the fetter was created pursuant to a judgment
treaties made under the authority of United which seemed to decide the controversy on
States. This status at least in the visible a 6:1:6 basis, that is only 6 Justices seemed
Constitution of the United States is not to accept the Basic Structure doctrine and the
accorded to judgments of the Supreme other 6 Justices rejected it with Justice H.R.
Court. Khanna not deciding the issue. Then came the
jurisprudentially astute move of the then Chief
Justice S.M. Sikri, to pronounce an operative
order which seemed to show the majority on
the question of Basic Structure doctrine as
III. The Indian Exposition of
Basic Structure: Beyond being at least 9.18
the pale of the Invisible
Constitution We have called this the “Basic Structure”
moment in the Constitutional Jurisprudence of
8. In the Indian Constitutional jurisprudence India.
Kesavananda Bharati was important
because it read an express limitation under 9. Likewise, there was a “Due Process
Article 368 of the Constitution providing for moment” in the Indian Jurisprudence when
the power of the Parliament to amend the a 7 Judge Bench in Maneka Gandhi19 on a
Constitution. moot question the Union of India speaking
through the Attorney General pointed
In the context of parliamentary amendments out that it would issue the passport to
to the Constitution affecting Constitutional the Petitioner, proceeded to deal with
and more importantly fundamental rights, the question on merits and overruled the
the Supreme Court in Kesavananda Bharati earlier 5 Judge Bench in A.K. Gopalan
read an invisible and inherent limitation in the case20 reading the concept of substantive
Amending authority of the Parliament, namely, due process into Article 21.
“provided that no such amendment can affect
or alter the Basic Structure of the Constitution.”
This is obviously not there in the visible 18 H.M. Seervai, CONSTITUTIONAL LAW OF INDIA,
Universal Law Publishing Co., 4th Edition, 1996, p.
Constitution, nor can it be said with any amount 3113.
19 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
17 Brown v. Board of Education, 347 U.S. 483 (1954). 20 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
129
IV. The Due Process Moment
15A (which, as amended, corresponds to Art.
10. The principal judgment prior to Maneka 22 of our Constitution) be adopted. Speaking
Gandhi which dealt with the issue of on the motion, he said:
“due process” was the celebrated A.K.
Gopalan case. At the time when the Indian “We are, therefore, now, by introducing Art.
Constitution was being drafted, one of the 15A, making, if I may say so, compensation
great founders (often not given his due for what was done then in passing article
credit in the drafting of the Constitution) of 15. In other words, we are providing for
the Indian Constitution, Sir B.N. Rau visited the substance of the law of “due process”
the United States and had discussions, by the introduction of Art. 15A. Article 15A
inter alia with the Judges of the American merely lifts from the provisions of the Criminal
Supreme Court and in particular Justice Felix Procedure Code two of the most fundamental
Frankfurter. He was personally cautioned by principles which every civilized country follows
Justice Frankfurter not to include the slippery as principles of international justice. It is to be
slope of “due process” in Article 21 and to found in the Cr.P.C. and, therefore, probably
substitute with the proposed expression by it might be said that we are really not making
the comparatively non-obtrusive expression any very fundamental change. But we are,
“except according to procedure established as I contend, making a fundamental change
by law”. H.M. Seervai in his Constitutional because what we are doing by the introduction
Law of India21 deals this aspect: of Art. 15A is to put a limitation upon the
authority both of Parliament as well as of the
“11.5 Although the Draft Constitution Provincial Legislature not to abrogate these two
contained Art. 15, it did not in the first instance, provisions, because they are now introduced
contain any Article corresponding to Art. 22 of in our Constitution itself. It is quite true that the
the Constitution. When the proposal to delete enthusiasts for personal liberty are probably
“due process” suggested by the Drafting not content with the provisions of clause (1)
Committee was debated in the Constituent and (2). The probably want something more by
Assembly on 6 Dec. 1948 and then on 13 way of further safeguards against the inroads
Dec. 1948, there was strong opposition to the of the executive and the legislature upon the
proposal; nevertheless the Drafting Committee’s personal liberty of the citizen. I personally think
suggestion was accepted by the Constituent that while I sympathise with them that probably
Assembly. However, the Assembly’s vote did this article might have been expanded to
not finally settle the matter, for dissatisfaction include some further safeguards, I am quite
with the deletion of “due process” continued satisfied that the provisions contained are
inside and outside the Assembly. On 15 Sept. sufficient against illegal or arbitrary arrests.
1949, Dr. Ambedkar moved that a new Article
Article 15A, with certain amendments, was
21 supra note 18, p. 970.
130
passed as it now stands in Art. 22 of our was comprehensive in nature and the
Constitution.” said provision should therefore be read as
excluding the freedoms dealt with in Article
11. The challenge in A.K. Gopalan was to 19. Further Articles 20 to 22 constituted an
the validity of the Preventive Detention exhaustive code and embodied the entire
Act, 1950 and the issue was whether the Constitutional protection in relation to life
procedure provided under a law depriving and liberty of an individual and was not
an individual’s life or liberty would be saved controlled by the provisions of Article 19.
by Article 21 or whether the procedure
should additionally meet the test of being 13. The argument of “due process” under
“fair and reasonable”. In that background, Article 21 was similarly rejected by the
a well reasoned three pronged argument Supreme Court holding that as follows:-
was put forth by the distinguished lawyer
M.K. Nambiar, the Senior Advocate (a) The word “due” was absent in Article 21;
appearing on behalf of the Petitioner:-
(b) The draft Constitution included the
(a) The word “law” in Article 21 does not merely expression “due process of law”, but
mean any enactment of a legislature, but this was subsequently removed and the
also includes the principles of natural expression “procedure established by
justice; law” was adopted instead. This went on
to indicate that the Constituent Assembly
(b) The reasonableness of any law providing was not desirous of introducing into India
for preventive detention ought to be the concept of “procedural due process”.
adjudicated on the touchstone of Article
19; and (c) The American principle of “procedural due
process” also included the doctrine of
(c) The expression “procedure established “police power” to restrict the scope of this
by law” includes the American concept of concept.
“procedural due process”.
(d) Therefore, if the concept of “procedural
12. The Supreme Court by a majority of 4:1 due process” were to be imported into
(Fazl Ali J, dissenting) rejected these India, then the concept of “police power”
submissions and concluded that the would also have to be similarly brought in.
word “law” used in Article 21 could not be
read as including the principles of natural 14. Therefore, all that was now required for the
justice. The Court further pointed out the State to deprive an individual of his life and
term “personal liberty” in Article 21 in itself liberty was to enact a law which should lay
131
down a procedure and which procedure Mukherjea who opined that “If the views
should be followed by the Executive while of the Drafting Committee were accepted
depriving a person of his life or personal by the Constituent Assembly, the intention
liberty. The approach of the Court thus obviously was to exclude the contents of
meant that Article 21 was to operate as a Article 19 from the concept of ‘personal
check only on the executive power of the liberty’ as used in Article 21”. Secondly,
State which could not act in the absence substituting the expression “due process
of any legislative enactment. of law” by the expression “procedure
established by law” was also suggested
15. The majority in A.K. Gopalan seems to since it was more specific, unambiguous
have been considerably influenced by and operated at a different level.
the Constituent Assembly debates of
08.12.1948 and 13.12.1948 when the 16. However, Justice Fazl Ali in his dissent held
proposal of the Drafting Committee to that the phrase “procedure established
delete the expression “due process” was by law” in Article 21 included within itself
mooted. The Draft Article 15 as originally the concept of “procedural due process”
passed by the Constituent Assembly meaning thereby that an individual could
provided that “no person shall be deprived not be condemned unheard and also that
of his life or liberty without due process of Article 19(1)(d) did control Articles 21 and 22
law…”. The Drafting Committee suggested because the right to freedom of movement
two principal changes to Article 15. Firstly, was an essential requisite of personal
the inclusion of the term “personal” before liberty and therefore the reasonableness
the word “liberty” was suggested. The of a law providing for preventive detention
reason provided for this amendment was should be justifiable under Article 19(5).
that otherwise liberty could be construed
to include all the freedoms which were 17. It was much later that this “cry in the
already dealt with by Article 13 (the wilderness” speech of Justice Fazl Ali
present Article 19). These deliberations became the mainstream Constitutional
in the Constituent Assembly Debates in law with the imprimatur placed on it by the
respect of this change weighed deeply 7 Judge Bench in Maneka Gandhi.
with Justice Patanjali Sastri who stated
that the “acceptance of this suggestion 18. There is an interesting contemporary view
shows that whatever may be the generally from 1965, 22 when the A.K. Gopalan view
accepted connotation of the expression held the field:
‘personal liberty’ it was used in Article 21 in
22 Dr. P.K. Tripathi, ’Protection of Personal Liberty
a sense which excludes the freedom dealt under the Constitution of India’ Agra University
with in Article 19” and also with Justice Extension Lectures, 1965, published in SPOTLIGHTS
ON CONSTITUTIONAL INTERPRETATION (1972).
132
“One more point must be mentioned... particularly as the expression “Personal
Though, the expression “personal liberty” in Liberty” has been held to be an expression
article 21 undoubtedly includes freedom from of widest amplitude.23 These rights include
arbitrary or illegal detention, it is important to the right to go abroad, now the right to
remember that it includes more. It includes privacy, right against solitary confinement,
all those unnumerable aspects of personal right to legal heirs, right to speedy trial,
liberty which it is impossible exhaustively to right against handcuffing, right against
enumerate. The right to go to bed when one delayed execution of a convict facing death
likes, to eat, dress or walk the way one likes, sentence, right against custodial violence,
to speak the language one likes, in short, to do right against public hanging, et alia. The
or not to do anything the way one likes. Some interesting recent judgment is that of the
of these aspects of liberty, the more important National Legal Services Authority vs. Union
ones, have been singled out for specific of India,24 which dealt with gender identity
treatment in article 19. But the list is by no and the rights of the transgender (TG)
means exhaustive. And, none of these liberties community, which was again held relatable
can be restrained without legal authority. Any to Article 21, as Article 21 contained within
executive order compelling a person to do it the right to live a life with dignity and that
anything against his wishes must be supported this right was an essential part of the Right
by law or it is struck down by article 21. to Life and would accrue to all persons on
account of their being human beings. It
... would therefore cover personal autonomy
and self-determination. Dealing with this
To conclude, it will be amply clear from what aspect, the Supreme Court held25:-
has been said before that the Constitution of
India protects effectively, both in theory and in “It is now very well-recognized that
actual operation, the liberty of the individual. the Constitution is a living character; its
In fact, due to the provision of article 32 which interpretation must be dynamic. It must be
confers a fundamental right on every person understood in a way that (sic is) intricate and
to approach the Supreme Court directly for advances modern reality. The judiciary is the
the enforcement of civil liberties, the remedy guardian of the Constitution and by ensuring
provided in the Indian Constitution is more to grant legitimate right that is due to TGs, we
direct and effective than that under any other are simply protecting the Constitution and the
Constitution in the world. Of this Indians can
23 See Generally, Durga Das Basu, Shorter Constitution
justifiably feel proud. “
of India; 14th Edition (2009) Pp. 371-373.
24 National Legal Services Authority vs. Union of India,
(2014) 5 SCC 438.
19. Over the time, several unenumerated
25 ibid; Kindly see the concurring judgment of Dr. A.K.
rights have been culled out from Article 21, Sikri, J at Para 128 [Page 566].

133
democracy inasmuch as judicial protection preferred, there is no principled way to prefer
and democracy in general and of human rights any claimed human value to any other. The
in particular is a characteristic of our vibrant judge must stick close to the text and the
democracy.” history, and their fair implications, and not
construct new rights.”

V. The Anti-majoritarian Prof. John Ely likewise criticized the 1973


critique of judicial review and decision on the right to abortion28. While
unenumerated fundamental concluding in his now famous article29 that the
rights decisions on abortion cases were founded
on a right of privacy which was read into
20. Way back in a 1975 article published in the Constitutional text by no imaginable article on
Stanford Law Review, Prof. Thomas C. Grey construction or interpretation. In a somewhat
etched out what is called the “Unwritten scathing attack, he goes on:-
Constitution of the United States”.26 He
referred to the “Pure Interpretive Model” “A neutral and durable principle may be a
which required the need for fidelity to thing of beauty and a joy forever. But if it lacks
the Constitutional text while exercising connection with any value the Constitution
judicial review, and the ‘no go area’ of marks as special, it is not a constitutional
judicial review viz., Constitutional doctrines principle and the Court has no business
based on sources other than explicit imposing it.”
commands of the written Constitution. A
great exponent of that view, though often A later proponent of a refined version
in dissent was Mr. Justice Black of the US of Interpretive Law, namely, Originalism or
Supreme Court (1937-1971). Prof. Robert Textualism was Late Justice Antonin Scalia.30
Bork, former Solicitor General of the United
States, and a leading propounder of the 21. Prof. Bickel was following on the doctrinal
“Pure Interpretive Model” of Constitutional approach of Prof. James Bradley Thayer
interpretation by Courts was bluntly direct that judicial review “may in a larger sense
in propounding his view27:- have tendency over time seriously to
weaken the democratic process”. This
“The choice of “fundamental values” by the Thayer doctrine was seen in full flow in India
Court cannot be justified. Where constitutional
28 Roe v. Wade, 410 U.S. 113 (1973).
materials do not clearly specify the value to be
29 John Ely, ‘The Wages of Crying Wolf: A Comment
on Roe v. Wade, 82 Yale L.J. 920, 949 (1973).
26 Thomas C. Grey, ‘Do We Have an Unwritten
30 See Generally, Lawrence Beer (ed.),
Constitution’ 27(3) Stanford Law Review 703 (1975).
Constitutionalism in Asia: Asian Views of the American
27 Robert Bork, ‘Neutral Principles and Some First
Influence.
Amendment Problems’ 47 Ind. L.J., 1, 8 (1971).
134
at two levels, firstly, in the fundamental right “That the power to strike down a
to property cases from 1950 to 1970 where constitutional amendment on the ground that
the Supreme Court set aside repeatedly it affects or injures the “basic structure” of the
the various legislations in bringing about Constitution flows from the text of Article 368 is,
social reforms on the ground that it violated with due respect, at best a “benevolent illusion”
fundamental rights of property. This led to of the type referred to by the late Professor
the Parliament coming out with a series Alexander Bickel in the context of Justice
of Constitutional amendments to undo Black’s insistence that the text of the First
“the damage” as it were. At the end of Amendment is absolute. Such illusions help
the day, the property owners lost their day people to imagine that they rule themselves.
against social reforms notwithstanding To quote Bickel’s thoughtful words:
the Courts’ protection due to the series
of Constitutional amendments and the But it is very dangerous. To begin with,
eventual repeal of the fundamental rights the illusion is a two-edged sword, which can
to property itself, namely Article 19(1)(f) be turned very sharply against the Court….
through the 44th Amendment. This was What is even more ominous, the illusion may
the negative play of the Thayer doctrine. even engulf its maker and breed, and it has
occasionally done, free ranging “activist”
22. The positive play of the Thayer doctrine government by the judiciary. Such government
was seen during Emergency when the is incompatible on principle with democratic
political detainees did succeed in obtaining institutions and in practice it will not be
orders of protection of their life and tolerated. This way lie crisis such as the Court-
liberty from several of the High Courts in packing fight of 1937, in which the Court, if
the country, but which decisions were it persists, must ultimately be the loser. The
eventually overturned in ADM, Jabalpur truth is that the illusion of judicial impotence
v. Shivkant Shukla,31 where the Supreme and automation may, when fostered, be first
Court refused to issue habeas corpus acquired by the people and last, with the
during the continuance of the Proclamation accompanying feel of omnipotence, by the
of Emergency, when the Presidential judges themselves. But it is also first lost by
Declaration under Article 359 suspended the people and last by the judges. One day the
the enforcement of fundamental rights judges may abandon it too late.
under Articles 14, 19 and 21.
In Bickel’s words, again, no court, like the
To quote an interesting observation32: Supreme Courts of the United States and

31 ADM, Jabalpur v. Shivkant Shukla, (1976) 2 SCC India, should “tell itself or the world that it
521. draws decisions from a text that is incapable
32 Dr. P.K. Tripathi, ‘Perspectives on the American
Constitutional Influence on the Constitution of India’
University of California Press (1979) p. 96. 135
of yielding them. That obscures the actual as in Golak Nath and other cases, and if it
process of decision, for the country, and for persuaded itself to bypass the barrier of the
the judges themselves, if they fall in with the constitutional inhibition in Article 359 to enforce
illusion. That also ignores the ground rule that the fundamental right by issuing the writ in the
“the integrity of the Court’s principled process recent habeas corpus cases, the democratic
should remain unimpaired, since the Court process would not have sprung into action as
does not involve itself in compromises and it did.”33
expedient actions.”
23. In an interesting article, Professor M.P.
“Yet, no sooner did the Court step aside Singh34 makes the following preambulatory
than the Thayer doctrine began to operate in statement, representing a new away from
the reverse, as it were and democratic forces the mainstream thought:
began to rally around the fundamental rights
of the individual. The upshot of it all was that “Amidst strong reactions against the decision
the opposition, which had laid divided and of the Supreme Court in Suresh Kumar Koushal
ineffective and spurned by the electorate ever v. Naz Foundation, this paper argues that the
since the commencement of the Constitution, Court has done all that is expected to do under
was united and galvanized into a single party, the Constitution and the law established under
under the name of the Janata Party, and in it. The respondents, especially the Union of
an unprecedented response from the people India, have unsuccessfully asked it to do what
secured an absolute majority in the House the Constitution does not expect it to do.
of People, or the lower house of Parliament, The remedy against Section 377 lies with the
relegating the Congress Party for the first time in people through their Parliament, and not in the
the history of the Constitution to the opposition Courts.
benches. The Congress Party lost practically
all the seats to the House from the nine North- I often wonder whether we do not rest our
Indian states supposed to be the bulwark of hopes too much upon constitutions, upon
its strength and Prime Minister Indira Gandhi laws and upon courts. These are false hopes;
was herself defeated in her constituency by a believe me, these are false hopes. Liberty lies
convincing margin of over fifty thousand votes. in the hearts of men and women; when it dies
One is tempted to say, in retrospect, that the there, no constitution, no law, no court can
philosophy of judicial restraint and tolerance of save it; no constitution, no law, no court can
the democratic processes commended itself even do much to help it. While it lies there, it
to the Supreme Court several years too late. It needs no constitution, no law, no Court to save
may not be too rash to surmise, too, that if the
33 ibid, p. 98.
Court had once again persisted in assuming 34 M.P. Singh, ‘Constitutionality of Section 377, Indian
to itself the mantle of the Constitution makers, Penal Code- A Case of Misplaced Hope in Court, 6
NUJS L. Rev 4 (2013) 569.
136
it– Judge Learned Hand, The Spirit of Liberty”35 of constituent law making, which may be
called “Constituent Review” as distinct
24. Before concluding, we must note an from mere judicial review stricto sensu,
excellent enunciation of judicial review in which stops at striking down a law, but
action, in a plurality of opinions of the Indian cannot as normally understood, extend to
Apex Court in the privacy judgment36 where adjudging the validity of a Constitutional
the Apex Court overruling two Constitution amendment.
Benches of six37 and eight38 Justices
respectively held the right of privacy as
a part of the expanse of the rights under VI. Some Concluding Thoughts
Article 21 of the Constitution. However,
the judgment which captures the ‘privacy 26. To conclude therefore, the Indian
moment’ commands a separate, fuller Constitutional experience, including the
treatment elsewhere and at another point development of the concept of Basic
in time. Structure clearly cannot be traced to the
written text. It cannot also be traced to
25. In Prof. Mark Tushnet’s analysis of the the Invisible Constitution of India, at least
anatomy of judicial review,39 the weak as understood by Prof. Tribe in his seminal
form of judicial review relates to a reading work. It is based on the Justices taking
down of the text of the law, whereas the a view of what the Constitution ought to
strong form is relatable to the ultimate be, a precept unknown to Constitutional
striking down of a legislative enactment jurisprudence in the judicial system of the
as unconstitutional. The Basic Structure Anglo-Saxon tradition, and it represents
doctrine really does not fit into this an Indian perspective of Constitutional law
dichotomy and rather transcends it. The going way beyond the traditional theories
doctrine is really in the nature of an exercise of the interpretative model, the Originalist
doctrine or indeed the doctrine of judicial
35 Judge Learned Hand, The ‘Spirit of Liberty’ Speech
review, and even judicial activism as
presented during the annual ‘I am an American Day’
event (May 21, 1944). understood in the Western jurisprudential
36 Justice K.S. Puttaswamy & Anr. v. Union of India,
thought.
Writ Petition (Civil) No. 494/2012 dated 24.08.2017.
37 Kharak Singh v. State of U.P., AIR 1963 SC 1295.
38 M.P. Sharma & Ors. v. Satish Chandra & Ors., AIR
27. With the doctrine of Basic Structure in place,
1954 SC 300.
39 Mark Tushnet, WEAK COURTS, STRONG RIGHTS: the judgments of the Supreme Court have
JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS
converted the Indian Constitution to an
IN COMPARATIVE CONSTITUTIONAL LAW, Princeton
University Press (2008); Also See M.P. Singh, Book exciting and challenging “work in progress”.
Review- Weak Courts, Strong Rights: Judicial Review
To give another example in the sphere of
and Social Welfare Rights in Comparative Constitutional
Law, (2009) 3 Indian Journal of Constitutional Law 198. judicial appointments, commencing with
137
the S.P. Gupta’s case40 (1981) and followed case44.
by the judgments in SCAORA I41 (1993),
the Presidential Reference (1998)42 and the 28. We therefore find that in India, once
SCAORA II (2015) , the Supreme Court
43
“the mantle of history” was seized in the
laid down the principle as a part of the Kesavananda Bharati judgment, the mantle
Basic Structure doctrine that to maintain has remained with the judiciary in general
the independence of the judiciary, it was and with the Apex Court in particular. It
necessary to insulate judicial appointments has survived various attempts to dislodge
from any interference by the Executive, it, starting from the aborted attempt at the
so much so that India today is the only review of the judgment itself,45 the 42nd
country where the Judiciary appoints its Amendment (which was substantially
own. It is undoubtedly true that this was repealed by the 44th Amendment in 1978)
certainly not the idea in the mind of the and the latest one in the NJAC experiment
Constituent Assembly, and can certainly resulting in the SCAORA II verdict.
not be read as emanating from any of
the Constitutional debates. The idea of For a follower of Constitutional jurisprudence,
Justices appointing themselves through a it is a rich area of debate and divergence and
Collegium has had its fair share of criticism stimulating new thinking. In many ways, it is
but in view of the strong judicial edifice a case of Constitutional amendment of far
of the Basic Structure doctrine, which is reaching impact brought about by classic
in many ways a welcome one, has now judicial articulation of high values of rule of
become a seemingly permanent feature of law in democracy and by minimizing if not
the Indian Constitution. The Parliament and shutting out totally the role and inter play of the
the Political Executive is finding it difficult legislative and the executive wings of the State
to dislodge this near permanent feature. in this very important aspect of the creation
The latest failed attempt in this regard and the functioning of the judicial institution.
originated by a unanimous Parliament
passing the NJAC Amendment (the 99th
Constitutional Amendment and the NJAC
Act, 2014) which failed judicial scrutiny by
a 4:1 verdict in the celebrated SCAORA II
*******
40 S.P. Gupta v. Union of India, (1981) Supp SCC 87.
41 Supreme Court Advocates on Record Association v. 44 Supreme Court Advocates on Record Association v.
Union of India, (1993) 4 SCC 441 Union of India, (2016) 5 SCC 1.
42 Special Reference No. 1 of 1998, In re, (1998) 7 45 Anil B. Divan, ON THE FRONT FOOT- WRITINGS
SCC 739. OF ANIL DIVAN ON COURTS, PRESS AND
43 Supreme Court Advocates on Record Association v. PERSONALITIES, Universal Law Publishing Co., (2013)
Union of India, (2016) 5 SCC 1. p. 243, 247.

138
Impact of GST Laws on the
Federal Structure of the Indian
Constitution
Arvind P. Datar*

Introduction: In 2000, the then Prime Minister2 initiated


discussions on GST by setting up an
The Government of India introduced the empowered committee. Thereafter, in 2003,
Goods and Service Tax (“GST”) after a long the Kelkar Task Force on indirect taxes
wait of nearly 16 years. It was in 2000 that suggested a comprehensive GST based on
the discussion to introduce GST in the country the principles of Value Added Tax (“VAT”).
was first mooted. The new tax required a A proposal to introduce a national level GST
complete overhaul of not only several indirect by April 1, 2010 was mooted in the Budget
tax legislations but also required several speech for the financial year 2006-07.
amendments to the Constitution of India as
well. Finally, the GST was announced with great Since the proposal involved restructuring of
fanfare at the midnight session of Parliament not only indirect taxes levied by the Centre but
on July 1, 2017. Arguably, this was one of the also the States, the responsibility of preparing a
largest tax reforms attempted in human history. Design and Road Map for the implementation
The new GST is an amalgam of several Union of GST was assigned to an Empowered
and State levies and was announced as “one Committee of State Finance Ministers. Based
nation, one tax”. The present article is confined on the inputs from the Government of India
to the constitutional aspects of the new tax and all the States, the Empowered Committee
and does not deal with the statutory provisions released its First Discussion Paper on GST in
of the Central or State GST enactments. November, 2009.

2. A long constitutional In order to take the GST related work further,


journey :
1
a Joint Working Group consisting of officers
from Central as well as State Governments was

* Senior Advocate, Madras High Court


constituted in September, 2009. Thereafter,
1 Ref: http://pib.nic.in/newsite/PrintRelease.
2 Shri Atal Bihari Vajpayee.
aspx?relid=148240.

139
to implement the GST, the Constitution (One again, made certain recommendations on the
Hundred and Fifteenth Amendment) Bill, was Bill held in November, 2013. After incorporating
introduced in the Lok Sabha in March, 2011 certain recommendations of the Empowered
and referred to a Standing Committee of Committee, the revised draft Constitution
Parliament for further examination. (One Hundred and Fifteenth Amendment) Bill
was introduced in the Lok Sabha on March,
Meanwhile, in pursuance of the decision 2011 but this Bill lapsed with the dissolution
taken at a meeting 3 between the Union Finance of the 15th Lok Sabha. In June, 2014, a draft
Minister and the Empowered Committee Bill was sent to the Empowered Committee
of State Finance Ministers, a “Committee after the approval of the new Government4.
on GST Design” consisting of officials of the The Cabinet, on 17th December, 2014,
Government of India, State Governments and approved the proposal for introduction of a Bill
the Empowered Committee was constituted. in Parliament for amending the Constitution
This Committee made a detailed examination of India to facilitate the introduction of GST in
on the GST design including the Constitution the country. The Constitution (One Hundred
(One Hundred and Fifteenth Amendment) and Twenty Second Amendment) Bill, 2014
Bill and submitted its report in January, was introduced in the Lok Sabha on 19th
2013. Based on this Report, the Empowered December, 2014 and was finally passed on 6th
Committee recommended certain changes May, 2015. It was then referred to the Select
in the Bill at their meeting at Bhubaneswar in Committee of Rajya Sabha, which submitted
January, 2013. The Parliamentary Standing its report on 22nd July, 2015. The Bill was
Committee submitted its Report in August, passed by Rajya Sabha on 3rd August, 2016,
2013 to the Lok Sabha. The recommendations and the amended Bill was passed by the Lok
of the Empowered Committee and the Sabha on 8th August, 2016. The Bill, after
recommendations of the Parliamentary ratification5 by the States6 received the assent
Standing Committee were examined by the
Ministry in consultation with the Legislative
4 16th Lok Sabha
Department. Most of the recommendations
5 Article 368(2) of the Constitution of India.
made by the Empowered Committee and 6 Assam (12th August), Bihar (16th August),
the Parliamentary Standing Committee were Jharkhand (17th August), Himachal Pradesh (22nd
August), Chhattisgarh (22nd August), Gujarat, (23rd
accepted and the draft amendment bill was August), Madhya Pradesh (24th August), Delhi (24th
August), Nagaland (26th August), Maharashtra
suitably revised.The final draft incorporating (29th August), Haryana (29th August), Telangana
the above changes was sent to the Empowered (30th August), Sikkim (30th August), Mizoram (30th
August), Goa (31st August), Odisha (1st September),
Committee for consideration in September, Puducherry (2nd September), Rajasthan (2nd
September), Andhra Pradesh (8th September),
2013. The Empowered Committee, once Arunachal Pradesh (8th September), Meghalaya (9th
September), Punjab (12th September), Tripura (26th
3 8th November, 2012 September).

140
of the President of India7 on 8th September, levies have now been replaced by a levy on
2016. The Constitutional (One Hundred and the “supply of goods”. Therefore, the levies
First Amendment), Act 2016 was notified in on manufacture and on sale are now replaced
the Gazette of India on the same date.This by a levy on supply of goods. The service tax
amendment not only inserted several new continues as a supply of services. The net
articles but amended several other provisions result is that the new levy is on the “supply of
which are referred to later. The stage was now goods and services”.
set to introduce the GST.
4. Constitutional amendments
3. GST Model: and distribution of taxing power:

India adopted a dual system of GST i.e. the The imposition of GST required major
Central Goods and Service Tax (“CGST”) and constitutional changes which were
the State Goods and Service Tax (“SGST”). incorporated by the Constitution (101st
Apart from India,Canada and Australia are the Amendment) Act, 2016. As India had adopted
only two countries which have adopted the dual the federal model for the Constitution, the
system of GST. A total of 16 Union and State power to levy taxes was distributed amongst
taxes have been subsumed in the GST. The Parliament and the States in Schedule VII of
new tax regime also prescribed multiple rates the Constitution. The distribution of taxing
on different products which created confusion powers is substantially similar to that which
and there was difficulty in complying with prevailed under the Government of India Act,
various procedures. There is now a proposal 1935. Entries 82 to 92C of List I of Schedule VII
to reduce the multiple rates to fewer rates by empowers Parliament to levy taxes on various
a process of rationalisation and to simplify the subjects mentioned therein. For example,
procedural provisions. income tax, central excise, customs duty are
in the Union list i.e. List I. On the other hand,
The new GST is primarily an amalgamation agricultural income tax, sales tax or VAT,
of certain Union and State levies. Mainly, there excise duty on potable alcohol and so on
is a merger of central excise and service tax are in the State List (List II). Entries 46 to 62
levied by the Union with VAT levied by the in the State List give the States the power to
States. Earlier central excise duty was levied levy taxes on the subjects mentioned therein.
on manufacture of goods under Entry 84 of Significantly, no tax is mentioned in List III
List – I of Schedule VII, whereas sales tax was which is the Concurrent List. This has led to
levied on sale or purchase of goods under the constitutional principle that there can be
Entry 54 of List – II of Schedule VII. Both these no overlapping of taxes: a tax must either be

7 Pranab Mukherjee.

141
within the legislative competence of the States Article 246A is the most important article
or of the Centre8. which enables Parliament and the State
legislatures to make laws with respect to the
GST is an exception to this rule and is goods and services tax imposed by the Union
levied both by the Centre and the States. and the respective States. Article 246A (2)
Interestingly, no amendment was made to confers exclusive power on Parliament to make
Schedule VII to insert a new entry to levy laws with respect to GST that takes place in
GST. It would have been possible to insert a the course of inter-state trade or commerce.
new entry in List III which would enable both Theoretically, nothing prevents each state
Parliament and the States to levy GST subject to make its own law with regard to GST. At
to certain limitations. However, the absence of present, however, Parliament has enacted the
GST in List III does not in any manner affect its Central Goods and Services Tax Act, 2017
constitutional validity. and each State Government has enacted their
respective goods and services tax act for that
The constitutional amendments have State. Thus, Maharashtra has the Maharashtra
conferred sufficient power and legislative Goods and Services Tax Act, 2017 and West
competence to both Parliament and the Bengal has the West Bengal Goods and
States to levy GST. Before proceeding further, Services Tax Act 2017. Fortunately, almost all
it would be useful to set out a summary of State laws relating to GST are identical thereby
the amendments that have been made to the avoiding inconsistent provisions amongst
Constitution and these can be subdivided as different States.
follows:
Thus, there is a complete demarcation of
(i) Articles inserted: 246A, 269A, 279A, powers between the Union and the States vis-
366 (12A), 366 (26A). à-vis levy of GST. Parliament is vested with
the right to make laws with respect to GST
(ii) Articles amended: 248, 249, 250, or any matter enumerated in the State List if
268, 270, 271, 286, 366, 368, Schedule VI, the Council of States declares, by a resolution
Schedule VII, List I, Entry 84; List II, Entries 5, 4 supported by not less than two thirds of the
and 62. members present and voting, if it is necessary
or expedient in national interest9. Parliament is
(iii) Articles omitted: 268A, Schedule VII, also empowered to make laws in respect of
List I, Entries 92 & 92C; Schedule VII, List II, GST during the period when a proclamation of
Entries 52, 55. emergency is in operation10.

8 Godfrey Phillips India Ltd. v. State of Uttar 9 Article 249.


Pradesh, (2005) 2 SCC 515: AIR 2005 SC 1103. 10 Article 250.

142
Goods and Services tax, services defined: has been substituted whereby excise duty on
Article 366(12A) defines “Goods and Service petroleum products will continue to be levied
Tax”11 to mean “any tax on supply of goods or by the Centre. In effect, a major portion of
services or both except taxes on the supply of the revenue of the States will continue to be
alcoholic liquor for human consumption”. The collected in the manner prior to the constitutional
term “goods” refers to include all materials, amendment. However, the States cannot levy
commodities and articles12. Under Article VAT on sale of petroleum products or potable
366(26A) “services” has been defined to alcohol sold in inter-state transactions.
mean “anything other than goods”13. The
definitions in the statutory provisions are so Although GST is claimed to be “one nation,
wide that virtually every transaction involving one tax”, it is really a levy made possible by
consideration is now taxable unless specifically numerous enactments. Broadly speaking the
exempt. The statutory provisions by which the Central Goods and Services Tax Act, 2017
GST is levied by the Centre and the States is and individual State GST Acts levy this tax
discussed in the next sub-heading. on intra-state supply of goods and services.
The levy is split equally and an invoice for a
5. GST- Co-operative local sale where GST is 18% will show a CGST
Federalism: levy of 9% and SGST levy of 9%. For inter-
state supply of goods and services, the levy
The levy of GST would not have been is under the Integrated Goods and Services
possible without the cooperation of the State Tax Act, 2017 (IGST). This levy is akin to the
Legislatures. The States have voluntarily erstwhile central sales tax insofar as goods
given up their power to levy VAT on goods. are concerned. As service tax was a central
However, in most States, the maximum levy, there was no question of inter-state levy.
revenue is generated by the levy of VAT on It is important to note that IGST is also levied
petroleum products and on alcohol for human on import and export of goods and the levy of
consumption. The constitutional amendment GST is an addition to the levy of basic customs
reserves the right of the States to continue to duty. The provisions of IGST lead to complex
levy Sales Tax (VAT) on these commodities. questions relating to location of supply and
This has been achieved by substituting Entry recipient and also may lead to issues of
54 of List II. Similarly, a substantial revenue extraterritorial operation. For Union Territories,
for the Centre is generated by excise duty there is the Union Territory Goods and Services
on petroleum products and Entry 84 of List I Tax Act, 2017.

11 Article 366 (12A).


Apart from all the above, section 18 of the
12 Article 366 (12). Constitution (101st Amendment) Act, 2016
13 Article 366 (26A). enables an additional levy to compensate
143
the States for loss of revenue on account of 7. Functions of the GST
implementation of GST. This levy can be made Council:
for a period of 5 years. In pursuance of this
power, Parliament has enacted the Goods and The function of the GST Council is, inter alia,
Services Tax (Compensation to States) Act, to make recommendations to the Union and
2017. Section 8 of this Act levies a cess on the States on taxes, cesses and surcharges
specified intra-state and inter-state supplies levied by the Union, the States and the local
of goods and services. The schedule to the bodies which has to be subsumed under GST;
Act levies this cess on pan masala, tobacco goods and services that may be subjected to,
products, coal, aerated waters and specified or exempted from the GST; the model GST
motor vehicles. This cess is levied in addition Law, principles of levy, apportionment of GST
to the other kinds of GSTs. levied on inter-state supplies,15 principles that
govern the place of supply; the threshold limit of
6. GST Council: turnover below which goods and services may
be exempted from GST; the rates including floor
Article 279A establishes Goods and Service rates with bands of GST; any special rate(s) for
Tax Council (“GST Council”) within sixty days a specified period, to raise additional resources
from the date of its commencement. This during any natural calamity or disaster; special
was established on 15th September, 2016.14 provision with respect to certain States16 and
The GST Council comprises of the Union any other matter as the GST Council may
Finance Minister, the Union Finance Minister deem fit.
of State in charge of Revenue or Finance, and
the Finance Minister or any other Minister of Every decision of the GST Council shall
each State. The Union Finance Minister acts be taken by a majority of not less than three-
as the Chairperson of the GST Council and fourths of the weighted votes of the members
the members shall, amongst themselves, present and voting. The vote of Union
appoint a Vice-Chairperson.The composition Government shall have a weightage of one-
of GST Council is laudable as there is equal third of the total votes cast and the votes of
participation from the Centre and the States all the State Governments taken together shall
to make policy decisions on tax. It is a matter have a weightage of two thirds of total votes
of immense pride that the GST Council has cast.17
responded to the difficulties faced by industries
with promptness and unanimity.
15 Article 269A.
16 Arunachal Pradesh, Assam, Jammu and Kashmir,
Manipur, Meghalaya, Mizoram, Nagaland, Sikkim,
Tripura, Himachal Pradesh and Uttarakhand.
14 Notification: S.O.2957 (E). 17 Article 279A(9).

144
8. Dispute Resolution – to ensure that the integrity and permanence of
Articles 279A and 131: the Council is maintained.

Disputes between the Government of 10. Other Constitutional issues:


India and one or more States or between the
Government of India and any State or States (i) Omission of entry tax: Entry 52 of
on one side, and one or more other States on List II of Schedule VII levied the controversial
the other side or between two or more States entry tax which was equivalent to octroi and
arising out of the recommendations of the GST resulted in extensive litigation. With the levy of
Council shall be adjudicated by a mechanism GST, the entry tax has been abolished and this
to be established by the GST Council.18 Article is expected to promote the free flow of goods
131 confers original jurisdiction on the Supreme not only from one State to another but also
Court to decide disputes between States or between local areas within the States.
between the Government of India and any
State or States. However, Article 131 starts (ii) Entertainment tax: Entry 62 of List II of
with the expression “Subject the provisions Schedule VII enabled the levy of entertainment
of this Constitution........” and, therefore, the tax on entertainments, amusements, betting
mechanism contemplated by Article 279A (11) and gambling has now been amended to
is a valid provision. Consequently, all disputes enable panchayats, municipalities, Regional or
relating to GST that may arise in terms of Article District Council to levy taxes on entertainments
279A (11) will not be decided by the Supreme and amusements. The words betting and
Court; to this extent, the original jurisdiction of gambling have been omitted. This tax can
the Supreme Court is curtailed. now be levied only by the bodies mentioned in
the amended provisions.
9. Amendments to GST
Council: (iii) Residuary power curtailed: Article 248,
which conferred exclusive residuary power
Any variation, addition or repeal of any to make any law with respect to matters not
provisions pretaining to the functions of the mentioned in Lists II and III has now been
GST Council, the constitutency of the GST made subject to Article 246A.
Council, the voting structure of the GST
Council, or any other provisions under Article 11. Conclusion:
297A will have to go through the rigmarole of
ratification by legislatures of not less than one- The enactment of GST has resulted in
half of the total States of India19.This is perhaps major changes in the federal structure of the
Constitution. The strict division of taxing
18 Article 279A(11).
19 Article 368(2)(a).
145
powers between the Union and the States is its own GST and, technically, there is nothing
now removed permitting the simultaneous levy in Article 246A which prevents one State from
of GST by both the Centre and the States. At taking a deviant path which may threaten the
the same time, GST does not eliminate the unified structure of the GST edifice. The extent
taxing powers of the States completely. To do to which Article 279A can resolve a dispute
so, would destroy the federal structure which arising on this account remains to be tested.
has been held to be part of the basic features
of the Constitution20. The States continue In fine, the GST regime has been implemented
to have powers of taxation with regard to without damaging the federal structure of the
petroleum products and potable alcohol thus Constitution. The States have agreed to part
saving a substantial portion of their revenue. As with their taxing powers in the hope that the
mentioned above, each State is entitled to pass new levy will be in the national interest.

*******

20 S.R. Bommai v. Union of India,(1994) 3SCC 1; AIR


1994 SC 1918

146
Judicial Perspective of Harmony
between Fundamental Rights
and Directive Principles of State
Policies in India for Protecting
Democratic Norms
Mohan Parasaran*

The fundamental rights found in Part III of our the scheduled castes, scheduled Tribes and
Constitution and the directive principles of other weaker sections of the people found in
state policy found in Part IV of our Constitution Article 46 which is a directive principle of state
reflect a delicate balance between individual policy. Article 15, as it stood in the original
liberties on the one hand and larger socialistic Constitution, did not contain a provision to
goals on the other hand and the need of the enable the State to make any special provision
polity at large to strike a balance between for the advancement of any socially and
these two goals. While fundamental rights educationally backward classes of citizens
have been made enforceable and judicial or for the Scheduled Castes and Scheduled
review of legislative actions as well as Tribes, though Article 16(4) empowered the
executive actions have been made subject State to make any provision for the reservation
to fundamental rights, on the other hand the of appointments posts or appointments in
directive principles of state policy have been government service in favour of a backward
framed as a set of obligations enjoined upon class of citizens in services under the State. In
the state but by virtue of Article 37 it has been one of its earliest cases, the Hon’ble Supreme
expressly made not enforceable by the Courts. Court in State of Madras vs. Champakam
The only other Constitution which has a similar Dorairajan [AIR 1951 SC 226, dated 9.4.1951],
set of directives is the Irish Constitution from held that the State could not discriminate on
which our Part IV was heavily inspired. the ground of caste or religion in respect of
admission to an educational institution since
The Constitution enjoins the state to promote Article 15 (as it then stood) and Article 29(2)
the educational and economic interests of clearly prohibited denial of admission to an
educational institution on the basis of caste.
*Senior Advocate and Former Solicitor General of India This is one of the earliest instances of the
147
directive principles being invoked wherein fair procedure. His argument was that the
caste-based reservation for admission of provisions of Article 19 relating to various
students to engineering and medical colleges personal freedoms should be read into Article
was sought to be justified by the government 21, guaranteeing the right to life, and Article
on the touchstone of directive principles. The 22, enabling the State to make laws providing
Court expressly held that directive principles for preventing detention; Articles 19 and 21
must conform to the chapter on fundamental should be read as implementing each other
rights and cannot run contrary to it.The enabling and that the law of preventive detention should
provision found in Article 15(4) was inserted pass the test of reasonable restriction under
vide the Constitution (First Amendment) Act, Article 19(5). The Supreme Court rejected this
1951 w.e.f 18.6.1951, mainly to neutralize the argument and held that the rights specified
judgment in Champakam Dorairajan’s case. in Article 19 of the Constitution, by their very
nature, were freedoms of a person assumed to
Therefore while the directive principles were be in full possession of his personal liberty, and
seen as guides to legislation and state action, that both punitive and preventive detentions
the fundamental rights became the limitations were outside the range of Article 19, and that
or the outline for such state action which Articles 19 and 21 were to be read separately.
could not be transgressed and justified on the Hence, the Court held that the validity of a law
premise that they are in furtherance of directive providing for preventive detention could not be
principles. judged on the touchtone of Article 19(5) which
enabled Parliament to impose reasonable
It must also be remembered that our restrictions. The Court, albeit wrong in its
understanding of interpretation of fundamental approach, was clear on its stand. Interestingly,
rights has undergone a sea change from the dissent by Fazl Ali J. in this case went on to
the initial years. One of the earliest cases of become the law later. Fazl Ali. J., disagreeing
seminal importance heard by the Supreme with the majority, had observed that it cannot
Court after the Constitution came into force be said that Articles 19, 20, 21 and 22 do not
was the case of A.K. Gopalan vs. State of to some extent overlap each other. Preventive
Madras [1950 AIR 27], wherein a communist detention which is dealt with in Article 22 also
leader detained under the provisions of the amounts to deprivation of personal liberty
Prevention of Detention Act with a view, as it which is referred to in Article 21 and is also a
was said, to prevent him from acting in any violation of the right to movement in Article 19(1)
manner prejudicial to the security of state and (d). This view came to become the law sixteen
the maintenance of public order. Gopalan years later in the Banks Nationalisation Case
argued that the fundamental rights contained (R.C.Cooper v. Union of India, AIR 1970 SC
in Article 19 were denied to him as the law 564) where the Court overruled the Gopalan
of preventive detention did not prescribe a approach and held that a law providing for
148
acquisition of property must also satisfy the under Article 21. Justice D. Y. Chandrachud
requirements of Article 31. While clarifying the observed as follows:
law, J.C. Shah, J. clearly held as follows:
“… the evolution of Article 21, since the
“In our judgment, the assumption in A.K. decision in Cooper indicates two major areas
Gopalan case that certain articles in the of change. First, the fundamental rights are
Constitution exclusively deal with specific no longer regarded as isolated silos or water
matters and in determining whether there is tight compartments. In consequence, Article
infringement of the individual’s guaranteed 14 has been held to animate the content of
rights, the object and the form of the State Article 21. Second, the expression 'procedure
action alone need be considered, and effect established by law’ in Article 21 does not
of the laws on fundamental rights of the connote a formalistic requirement of a mere
individuals in general will be ignored cannot be presence of procedure in enacted law. …
accepted as correct.” The mere fact that the law provides for the
deprivation of life or personal liberty is not
This position of law came to be further sufficient to conclude its validity and the
consolidated in Maneka Gandhi v. Union procedure to be constitutionally valid must be
of India, (1978) 1 SCC 248 where it was fair, just and reasonable. … The law is open
reiterated that: to substantive challenge on the ground that it
violates the fundamental right.”
“If a person’s fundamental right under Article
21 is infringed, the State can rely upon a law Justice Chandrachud further observed that:
to sustain the action, but that cannot be a
complete answer unless the said law satisfies “The recognition of privacy as a fundamental
the test laid down in Article 19(2) so far as constitutional value is part of India’s
the attributes covered by Article 19(1) are commitment to a global human rights regime.
concerned.” There can be no doubt that in view Article 51 of the Constitution, which forms part
of the decision of this Court in R.C. Cooper v. of the Directive Principles, requires the State to
Union of India [(1970) 2 SCC 298 : (1971) 1 endeavour to “foster respect for international
SCR 512] the minority view (in Gopalan) must law and treaty obligations in the dealings of
be regarded as correct and the majority view organised peoples with one another.” … India
must be held to have been overruled.” is a responsible member of the international
community and the Court must adopt an
More recently, in Justice K S Puttaswamy interpretation which abides by the international
(Retd.) vs. Union of India, 2017 (10) SCALE commitments made by the country particularly
1, a 9 Judge Bench of the Supreme Court where its constitutional and statutory mandates
held that privacy is a fundamental right falling indicate no deviation.”
149
Therefore, with the development of than the other. You snap one and the other will
understanding of fundamental rights itself, its lose its efficacy. They are like a twin formula
relationship with directive principles has also for achieving the social revolution, which is
evolved over the years. the ideal which the visionary founders of the
Constitution set before themselves. In other
The locus classicus on this issue is the case words,the Indian Constitution is founded on
of Minerva Mills Ltd vs. Union of India 1980 the bed-rock of the balance between Parts
AIR 1789 wherein the Supreme Court was III and IV. To give absolute primacy to one
required to decide upon the validity of section over the other is to disturb the harmony of
4 of the Constitution 42nd Amendment Act the Constitution. This harmony and balance
1976 which amended Article 31C as follows: between fundamental rights and directive
principles is an essential feature of the basic
“Notwithstanding anything contained in structure of the Constitution. … just as the
article 13, no law giving effect to the policy of rights conferred by Part III would be without a
the State towards securing [all or any of the radar and a compass if they were not geared
principles laid down in Part IV] shall be deemed to an ideal, in the same manner the attainment
to be void on the ground that it is inconsistent of the ideals set out in Part IV would become
with or takes away or abridges any of the a pretence for tyranny if the price to be paid
fundamental rights conferred by article 14, for achieving that ideal is human freedoms. …
article 19 or article 31…” The portion underlined The goals set out in Part IV have, therefore,
above was substituted by way of amendment to be achieved without the abrogation of the
for “the principles specified in clause (b) or means provided for by Part III. It is in this
clause (c) of Article 39”. sense that Parts III and IV together constitute
the core of our Constitution and combine to
The Constitution bench by a majority of form its conscience. Anything that destroys
4 to 1 held a part of the amendment to be the balance between the two parts will ipso
unconstitutional and observed that: facto destroy an essential element of the basic
structure of our Constitution.”
“The significance of the perception that
Parts III and IV together constitute the core The Court further went on to hold that if article
of commitment to social revolution and they, 31C as amended by the 42nd amendment is
together, are the conscience of the Constitution allowed to stand, it will confer an unrestricted
is to be traced to a deep understanding license on the legislature and the executives,
of the scheme of the Indian Constitution. both at the Centre and in the States, to destroy
Granville Austin’s observation brings out the democracy and establish an authoritarian
true position that Parts III and IV are like two regime.In his partly dissenting judgement,
wheels of a chariot, one no less important Justice Bhagwati however, held the amended
150
article 31C to be valid, while observing that it is some shift over the years in the interpretive
not correct to say that under our constitutional model of the Supreme Court over this issue.
scheme, Fundamental Rights are superior to While initially the Supreme Court had clearly
Directive Principles or that Directive Principles held that the directive principles are subordinate
must yield to Fundamental Rights. He observed to fundamental rights, and must succumb to it
that if a law is enacted for the purpose of giving in case of any conflict, it was later developed
effect to a directive principle and it imposes to suggest that they are both equally important
a restriction on a fundamental right, it would and valuable for the balance in the Constitution
be difficult to condemn such restriction as to exist and yet later it started being used as
unreasonable or not in public interest. a marker for reasonable state action if such
action is in furtherance of directive principles.
Subsequently, in Sanjeev Coke Mfg. Co. For instance, as Gautam Bhatia rightly
v. Bharat Coking Coal Ltd., (1983) 1 SCC points out in his article Directive Principles
147, the Supreme Court held that Article 14 of State Policy: an Analytical Approach that
goes out where Article 31C comes in, and the directive principles started being used
explained the observations of Bhagwati J. in as a marker for reasonableness to test
Minerva Mills’ case as follows: governmental action and that any government
policy aimed at advancing a directive principle
“it appears to us, he was at great pains to cannot but be in public interest raising a
point out that the broad egalitarian principle of presumption of reasonableness. He cites an
social and economic justice for all was implicit example of the Right to Education Cases of
in every directive principle and, therefore, a law 2012 wherein the Right of Children to Free
designed to promote a directive principle, even and Compulsory Education Act was being
if it came into conflict with the formalistic and tested by the court for the constitutionality
doctrinaire view of equality before the law, would and the 25% reservation for the economically
most certainly advance the broader egalitarian weaker sections was found to be reasonable
principle and the desirable constitutional goal under article 19(6) for suppressing the right
of social and economic justice for all. If the law under article 19(g) because it was found to be
was aimed at the broader egalitarianism of the in furtherance of directive principles. But this
directive principles. Article 31-C protected the approach can also be found in some of the
law from needless, unending and rancorous earlier cases as well. For instance, in State of
debate on the question whether the law Bihar vs. Kameshwar Singh [AIR 1951 SC
contravened Article 14’s concept of equality 252], wherein the Supreme Court, relying upon
before the law. That is how we understand the directive principles incorporated in Article
Bhagwati, J.’s observations.” 39(b), held that certain zamindari abolition laws
have been passed for a public purpose within
It is interesting to note that there has been the meaning of Article 31(2) and that state
151
ownership of control over land was a necessary Supreme Court has been able to overcome
preliminary step towards the implementation jurisprudential obstacles which are often posed
of directive principles that it could not but be when faced with the argument of enforcement
a public purpose. The issue relating to the of positive obligations on the state particularly
perceived dichotomy between fundamental in the context of socio-economic rights. Such
rights and directive principles has come up rights have been argued must be best left to
in sharp debate with respect to enforcement be fulfilled by political means and not through
of socio-economic rights especially since courts raising the arguments of democracy
it was perceived that directive principles and legitimacy that it is best left to the elected
embodied positive obligations or duties upon representatives of the state to decide where
the state which were unenforceable whereas the resources must be expended. However,
the fundamental rights primarily imposed a the Supreme Court has relied upon directive
negative obligation on the state to not take principles of state policy to overcome this
away the rights conferred and recognised by argument and held that irrespective of political
part III of the Constitution. However our Indian parties in power the directive principles
Supreme Court has jurisprudentially overcome contained in Part IV of the Constitution embody
this dichotomy and rightly recognised that the aspirations of the nation. The court has
most fundamental rights give rise to both traced a democratic norm located within the
negative and positive obligations upon the directive principles of state policy and drawn
state and therefore various directive principles legitimacy for its decisions on socio-economic
have been progressively read into fundamental rights. In Bandhua Mukti Morcha v. Union of
rights. For instance the Hon’ble Supreme India (1984) 3 SCC 161, the Supreme Court,
Court in the case of Unnikrishnan vs. State dealing with individuals living in bondage,
of A. P. (1993) 1 SCC 645 identified the right observed that:
to free primary education up to the age of 14 as
fundamental right, which was later inserted into “...This right to live with human dignity
the Constitution as Article 21A. In fact, Justice enshrined in Article 21 derives its life breath
B.P. Jeevan Reddy had observed that it is well- from the Directive Principles of State Policy
established by decisions of this court that the and particularly Clause (e) and (f) of Article
provisions of part III and IV are supplementary 39 and Articles 41 and 42 and at the least,
and a means to achieve the goal indicated in therefore, it must include protection of the
Part IV of the Constitution. It was also held that health and strength of the workers, men and
fundamental rights must be construed in light women, and of the tender age of children
of directive principles. against abuse, opportunities and facilities for
children to develop in a healthy manner and in
Therefore, it is seen that by using the conditions of freedom and dignity, educational
directive principles of state policy, the Indian facilities, just and humane conditions of work
152
and maternity relief. These are the minimum In Jindal Stainless Ltd v. State of
requirements which must exist in order to Haryana, [AIR 2016 SC 5617] wherein a 9
enable a person to live with human dignity, and Judge Bench of the Supreme Court upheld
nor State-neither the Central Government-has the validity of levy of entry tax, Justice Ramana
the right to take any action which will deprive observed the following in the context of taxation
a person of the enjoyment of these basic as a facet of exercise of State sovereignty
essentials.” and how levy of taxes to generate revenue is
relevant to achieve objectives in furtherance of
In Paschim Banga Khet Mazdoor Samity directive principles:
v. State of W.B., (1996) 4 SCC 37, the right
to emergency medical care as the core of “Our constitutional history shows that
the right to health was read into Article 21 we at one point had rigorously defended
which was found to be in furtherance of the individualistic rights [for ex. Right to Property].
directive principles contained in Article 47 Slowly we have moved towards community
which deals with public health. The concept of rights by invoking Directive Principles of State
minimum core is useful in contextualizing the Policy as a tool to judicially interpret Part III of
role of courts amidst the debate of justiciability the Constitution. … The States in the modern
of socio-economic rights as it carves out era are not strictly confined to political activities
an immediate and determinate goal for an and law making functions. They function in a
otherwise progressively realisable right. Lack welfare society. Such working of States was
of financial resources cannot be a justification visualized by our framers also, who were
for delaying fulfilment of basic obligations on aware of responsibilities a State must shoulder
the state. In Shantistar Builders v. Narayan and discharge. This is the very reason for
Khimalal Totame, (1990) 1 SCC 520, existence of Directive Principles of State
the Supreme Court held that a reasonable Policy and which sets normative and positive
residence is an indispensable necessity for standards for the Government.When the State
fulfilment of the constitutional goal in the matter is burdened with such normative goals as
of development of man and should be taken its primary responsibility, such activities are
as included in 'life' in Article 21. This obligation inevitably dependent on availability of monetary
was extended in Ahmedabad Municipal resources. …”
Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 121 wherein the court had held Therefore, it is my understanding from a
that it is the duty of the State to provide shelter survey of decisions of the Hon’ble Supreme
to the poor and indigent weaker sections of Court that there is increasing tolerance towards
the society in fulfilment of the constitutional state action when it is in furtherance of directive
objectives contained in Articles 38, 39 and 46. principles of state policy and increasingly such
actions have been found to be reasonable
153
restrictions on fundamental rights unless they 857/2015 dt. 21.7.2017] – The Court directed
are so palpably abhorrent that they cannot be the State Governments and Union Territories
sustained by any means. to effectively implement the provisions of the
National Food Security Act in letter and spirit.
The Supreme Court also constituted a
'social justice' bench in 2014 to hear issues c. Inhuman Conditions in 1382 Prisons,
where a “proactive role” is required in order In re (2016) 3 SCC 700 – The Court directed
to meet Constitutional goals. These include - sincere and effective implementation of prison
release of surplus food grains lying in stocks reforms, while observing that “even though
for the use of people living in the drought Article 21 of the Constitution requires a life of
affected areas; to frame a fresh scheme for dignity for all persons, little appears to have
public distribution of food grains; to take steps changed on the ground as far as prisoners are
to prevent untimely death of the women and concerned”.
children for want of nutritious food; providing
hygienic mid-day meal besides issues relating d. Swaraj Abhiyan v. Union of India,
to children; to provide night shelter to destitute (2016) 7 SCC 498 – The Court, while
and homeless; to provide medical facilities considering drought or drought-like conditions
to all citizens irrespective of their economic prevailing in the country and implementation
conditions; to provide hygienic drinking of social security measures, observed that
water; to provide safety and secured living “We would like to draw attention to Article
conditions for the fair gender who are forced 47 of the Constitution which provides that
into prostitution, etc. Some of the judgments one of the primary duties of the State is to
pronounced by the Social Justice Bench raise the level of nutrition and the standard of
include: living of the people. Although Article 47 is not
enforceable being a directive principle, there is
a. Environment and Consumer considerable moral force and authority in this
Protection Foundation vs. Union of India provision to persuade the State Governments
[W.P. 659/2007 dt. 11.8.2017] – The Court and the Government of India to attempt at
constituted a committee to study reports on ensuring that the people, particularly those in
the condition of widows in Vrindavan, while drought-affected areas, are provided adequate
observing that “It is to give voice these hapless foodgrains and a cooking medium for the
widows that it became necessary for this preparation of their meals.”
Court to intervene as a part of its constitutional
duty and for reasons of social justice to issue Though the directive principles remain
appropriate directions.” unenforceable on paper, the Supreme Court’s
proactive approach has virtually made them
b. Swaraj Abhiyan v. Union of India [W.P. enforceable. Sometimes this approach of the
154
Court draws criticism from certain quarters, on Dental College’s case,a succinct explanation
the ground it has ventured into policy-making. of the doctrine of proportionality was provided
The recent judgments with regard to ban on (per Sikri, J.):
sale of liquor on highways [State of T.N. v.
K. Balu, (2017) 2 SCC 281] and ban on sale “60. …Thus, while examining as to whether
of crackers in the NCR region [Arjun Gopal v. the impugned provisions of the statute and
Union of India, dt. 9.10.2017] were criticized rules amount to reasonable restrictions and
for “overreaching”. However, as regards the are brought out in the interest of the general
former, the Court was only implementing the public, the exercise that is required to be
policy of the Government while taking into undertaken is the balancing of fundamental
account accidental deaths on the roads. As right to carry on occupation on the one
regards the latter, the Court acted on direct hand and the restrictions imposed on
evidence of deterioration of air quality at the other hand. This is what is known as
alarming levels every year during Diwali on “doctrine of proportionality”. Jurisprudentially,
account of burning of firecrackers. “proportionality” can be defined as the set of
rules determining the necessary and sufficient
As the jurisprudence as to the interplay of conditions for limitation of a constitutionally
fundamental rights and directive principles protected right by a law to be constitutionally
continues to evolve, one must not lose sight permissible. According to Aharon Barak (former
of the fact that ultimately, a balance has to Chief Justice, Supreme Court of Israel), there
be struck between the two. In my view, the are four sub-components of proportionality
doctrine of proportionality can be a useful which need to be satisfied [Aharon Barak,
test to balance fundamental rights and Proportionality: Constitutional Rights and Their
directive principles if at all a conflict arises Limitation (Cambridge University Press 2012)],
while adjudicating legislative action and the a limitation of a constitutional right will be
proportionality test has been extended to test constitutionally permissible if:
legislation by the Indian Supreme Court in the
case of Modern Dental College v. State of (i) it is designated for a proper purpose;
Madhya Pradesh, 2016 (7) SCC 353. The
Hon’ble Supreme Court while explaining the (ii) the measures undertaken to effectuate
doctrine of proportionality has emphasised such a limitation are rationally connected to the
that when the Court is called upon to decide fulfilment of that purpose;
whether a statutory provision or rule amounts
to unreasonable restriction or not, the exercise (iii) the measures undertaken are necessary
that is required to be undertaken is the balancing in that there are no alternative measures that
of fundamental rights on the one hand and the may similarly achieve that same purpose with
restrictions imposed on the other. In Modern a lesser degree of limitation; and finally
155
(iv) there needs to be a proper relation purpose, and such measures are necessary.”
(“proportionality stricto sensu” or “balancing”) Therefore, likewise the doctrine of proportionality
between the importance of achieving the as a tool for interpretation can be effectively
proper purpose and the social importance of deployed to test state action, legislative or
preventing the limitation on the constitutional otherwise in resolving any apparent conflict
right… between directive principles of state policy and
fundamental rights and harmonise them since
63 … To put it pithily, when a law limits it cannot be denied that a large population of
a constitutional right, such a limitation is our country is still struggling to meet their basic
constitutional if it is proportional. The law needs and therefore if the State undertakes
imposing restrictions will be treated as certain measures for their welfare, larger public
proportional if it is meant to achieve a proper interest must also be taken into account as a
purpose, and if the measures taken to achieve factor to test its validity against Part III of the
such a purpose are rationally connected to the Constitution.

*******

156
Fragments from a
Manuscript
Shyam Divan*

It often falls on archeologists and historians amendments to the Constitution. The thrust
to reconstruct civilizations and their cultures of the petitioner’s case was to protect the
from a shard of pottery or the remnants of fundamental right to property, guaranteed
parchment. In contrast, the tools of law require under Article 19(1)(f) of the Constitution. The
us to sift through the dross and distill the ratio respondents led by H.M. Seervai, Advocate
of a decision. We lawyers are trained to ignore General of Maharashtra, contended that
distractions of what might have happened in fundamental rights were amenable to
court and focus on the eventual outcome and amendments and could be abrogated.
the principle laid. Nevertheless, at times of
repose we often drift into imagining the theatre My father, Anil B. Divan2 maintained hand
that played out in the courtroom when great written notes of the hearings3 that began at 11
cases were heard. a.m. on Tuesday, October 31, 1972. Nani A.
Palkhivala4 opened the case for the petitioners
Offered here are a few fragments of what and argued for 30 days. He was followed
happened in court during Kesavananda on January 8, 1973 by C.K. Daphtary, M.C.
Bharati,1 arguably the most significant Chagla, Soli J. Sorabjee and other counsel
decision by the Indian Supreme Court. These who concluded their submissions on the same
manuscripts may hold your interest because
2 Referred to as “ABD” in the documents excerpted
they draw on the personal records of two here.
stalwarts who attended the hearings and later 3 Apart from these notes, Mr. Anil B. Divan has written
about Kesavananda Bharati in “Nani Palkhivala –
wrote on the landmark case. Some Personal Glimpses – The Fundamental Rights
Case” and “H.M. Seervai – Random Memories and
Recollections” in Anil Divan, On the Front Foot :
In Kesavananda Bharati, the petitioners Writings on Courts, Press and Personalities at pages
assailed the 24th, 25th, 26th and 29th 275 and 286 (2nd Ed., 2017, Universal). Mr. Divan
appeared on the side of the petitioners for sugar
*Senior Advocate factories in Maharashtra and writes that till 10 days
before the commencement of the case, Palkhivala was
1 His Holiness Kesavananda Bharati Sripadagalveru v.
undecided whether he would accept the brief and M.C.
State of Kerala, 1973 Supp SCR 1; (1973) 4 SCC 225;
Chagla was to lead the arguments.
AIR 1973 SC 1461.
4 Referred to as “NAP” in some of the documents
excerpted here.
157
day. On Tuesday January 9, 1973 Seervai phrased words of a distinguished
commenced his submissions and soon lawyer. I would however request
articulated two basic postulates of democracy: your Lordships not to read the
(1) faith in human beings, and (2) faith in human name of the author.
reason. Assisting Seervai was my senior, [NAP is given cyclostyled bunch
Tehmtan R. Andhyarujina who maintained a he hands over to Court master.]
daily diary of the hearings. T.R. Andhyarujina I again request your Lordships not
drew on this diary and other primary sources to read the name because if you
from the records of the Supreme Court to do, you will not believe your eyes.
capture the twists and turns in the case.5 The name is H.M. Seervai.
--- Laughter ---
The Supreme Court Bench of 13 Judges [Reads articles]
was presided over by Chief Justice S. M. --- Three interruptions by
Sikri.6 The Chief Justice was to retire on April Seervai ---
25, 1973, raising a deadline for deliberations Seervai : [After] Articles written – Member of
and judgment. Parliament [in] Select Committee
told [me] that certain clauses
On the 30th day of the proceedings, this [were] dropped because of [the]
is how Palkhivala concluded his arguments articles.
before the winter recess:7 NAP: Thank you.
Seervai : I will fully explain the articles.
Thursday, December 21, 1972 NAP : You will do so at length when your
30th hearing turn comes.
3:40 pm Hegde J. : Shows that judges and lawyers
should not write articles.
NAP : In another twenty minutes I will Chandrachud J. : Mr. Palkhivala have you not
have done. I will end as I began committed breach of copyright?
on the question of approach, --- Laughter ---
with a few well chosen and well

5 T. R. Andhyarujina, The Kesavananda Bharati Case


: The Untold Story of Struggle for Supremacy by The punch in Palkhivala’s closing submission
Supreme Court and Parliament (2011, Universal). is revealed on a reading of Seervai’s passionate
6 The other justices on the Bench were J.M. Shelat,
K. S. Hegde, A.N. Grover, A.N. Ray, P. Jaganmohan defence of the right to property, in a series of
Reddy, D.G. Palekar, H. R. Khanna, K. K. Mathew, three articles that appeared in the Times of
M.H. Beg, S.N. Dwivedi, A.K. Mukherjea and Y. V.
Chandrachud. India seventeen years before Kesavananda
7 Hand written manuscript of hearing maintained by was argued.
Anil B. Divan.

158
Fundamental rights (g) and Article 31 without the most anxious
I – A Basic Issue 8
thought. They found in the Constitutions of
By H.M. Seervai great Democracies that acquisition of property
was on the basis of just compensation. The
“Is it too much to hope that the Prime Minister Constitution of India, like those of these
who is never afraid to admit a mistake, will democracies, was also designed to secure
realize that his bill rests upon a demonstrably basic human freedoms; equality before
wrong interpretation of the Supreme Court the law, freedom of person, of speech, or
Judgment,9 and that the cause which the association and of religion. It was realised
Supreme Court has vindicated is also his that for all practical purposes these freedoms
own cause – because of freedom and justice would come to nothing if the freedom to carry
for the inhabitants of India? He will abandon on a business, trade, profession or calling,
article (2A) (proposed to be added in article the freedom to acquire, hold and dispose of
31) since it provides for an unjust deprivation property and the freedom from deprivation of
of property.” property was not also secured.

Fundamental rights ***


II – No Compensation for Shareholders
By H.M. Seervai 10
SOCIAL WELFARE
ANXIOUS THOUGHT
When, therefore, we are told that fundamental
Is it not time that we rekindled the inspiration rights prevent Social Welfare Legislation, we
which led to the enactment of fundamental can answer: we dispute the fact. The State
right? The Prime Minister and the distinguished has taken over Joint Stock Companies,
Statesmen and Lawyers who framed our Railways, Telephone systems, Air Transport,
Constitution did not enact Article 19(f) and on the payment of just compensation and
so promoted social welfare. But even if the
8 Excerpt from Times of India – Bombay Edition dated
February 14, 1955 at page 6 Columns 7-8. Cyclostyled guarantee of Fundamental Rights prevents or
copy of article tendered by Palkhivala to the Supreme retards “Social Welfare” Legislation we must
Court. Page 1222, Vol. IV, Papers of Anil B. Divan.
9 Seervai was referring to Prime Minister Nehru and the maintain that there is no higher social welfare
Sholapur Mills case, reported as Chiranjit Lal Chowdhuri than the bringing up free and upright people
v. Union of India & Ors. (1950) SCR 869.
10 Excerpt from Times of India – Bombay Edition dated living under Constitution which puts it beyond
February 15, 1955 at page 6 Columns 7-8. Cyclostyled anybody’s power to take an Indian’s life by
copy of article tendered by Palkhivala to the Supreme
Court. Page 1230, Vol. IV, Papers of Anil B. Divan. taking the means whereby he lives; as long
as the means are not immoral. It would be a
strange paradox if “Social Welfare” legislation
159
which is designed to increase the material effect of Palkhivala’s closing flourish:11
wealth of the people was accompanied by
legislation rendering that wealth insecured Thursday, January 11, 1973
when earned. It would be a still stranger 34th hearing (Dictated by A.B.D.)
paradox to fight Communist tyranny by
borrowing the Communist’s own weapon of Seervai : It is submitted that there is intrinsic
confiscation and suspension of Constitutional evidence in the provisions of
Guarantee “in the national interest.” Part III itself that our Constitution
in Part III does not adopt the
If the effect of the amendments on the theory that fundamental rights
economic and moral life of the country will be are natural rights or that they are
grave, the effect on the young democracy of moral rights which every human
India will be disastrous since the Constitution being at all times ought to have
will have been treated as an ordinary law to be simply because of the fact that
changed at the will of the party in power. If today as opposed to other beings he is
freedom from unjust deprivation of property rational and moral.
and business can be brushed aside in “the
national interest”, the freedom of speech and (Seervai developed this
association could also be brushed aside, if the submission by saying that freedom
Government of tomorrow thought that “national of speech and expression, right to
interest” required a strong Government whose form associations, etc. are strong
dictates must be unquestioningly obeyed. emotive words.)

On 26th January, 1950, we lifted up our According to my submission


heads because our Constitution decreed there are no natural rights in an
that all Governments in India were to work organized society as such.
within the framework of fundamental human
freedoms. Must we, five years later, lower our I do not want to mix up moral
heads by saying that there are no fundamental arguments and emotional appeals
freedoms; that the Constitution did not mean with legal arguments.
what it said when it guaranteed fundamental
rights, that there is nothing fundamental except In due course I will meet “the drama
the Government of the day? performed by Mr. Palkhivala in the

11 This excerpt is from typed notes prepared by Anil


On the third day of his submissions, Seervai B. Divan. The typed notes are based on separate hand
was momentarily distracted by the lingering written notes recorded in court.

160
last 20 minutes of his submission” the situation caused by Justice Beg’s indefinite
(This statement was made by Mr. illness. At this conference the Chief Justice
Seervai at 12:13 p.m.) stated that the Court would be adjourned for
the rest of the week and would reassemble
Hegde J.: It is not proper to use words on Monday the 12th March if Justice Beg was
regarding Counsel. There will be advised that he could resume his appearance
no end to it. on the bench by his doctors. If, however, he
was not so advised, the court would resume
Seervai : I withdraw the words. the very next day with 12 judges without Justice
Beg. There was no protest by any Counsel to
[Seervai continues his arguments] this. However, on the next day i.e. 7th March
the bench was notified for hearing on Monday
My reasons for supporting the the 12th March and resumed with Justice Beg
above submission are as under: on the bench on that day.12

1. The language of Art. 13(2) Attorney General Niren De and Solicitor


shows that these rights are General Lal Narain Sinha followed Seervai and
conferred by the people of India concluded their submissions on March 14,
and they were such rights as 1973 leaving four days for the petitioners to
the people thought fit to give in rejoin.
the organised society or State
which they were creating. Mid-way through Palkhivala’s rejoinder
Justice Beg fell ill again and the Chief Justice
These rights did not belong called a second chamber meeting with Judges
to people of India before 26th and counsels present. The tense exchange is
January, 1950 and could not captured in these minutes: 13
have been claimed by them.

In the course of Seervai’s arguments on


February 6, 1973 Justice Beg was admitted
to hospital and the hearing resumed in the 12 T. R. Andhyarujina, The Kesavananda Bharati
Case : The Untold Story of Struggle for Supremacy
following week. Andhyarujina recounts: by Supreme Court and Parliament page 33 (2011,
Universal).

Justice Beg again became sick for the


13 Typed record of minutes prepared by Anil B. Divan.
second time and was absent on the 5th March. Also see T. R. Andhyarujina, The Kesavananda Bharati
Case : The Untold Story of Struggle for Supremacy
On the 6th March, the Chief Justice again
by Supreme Court and Parliament page 34-36 (2011,
called a conference in his chamber to consider Universal).

161
Thursday, March 22, 1973 Attorney General : states that if Their
[Niren De] Lordships have decided to
Minutes of The Meeting in Chambers continue there is nothing to say
but it is his submission that Mr.
(Dictated by A.B.D.) Palkhivala should be asked to
submit his written submissions
Present: C.J. and all other Judges except only so that Beg J. can consider
Beg J. and Dwivedi J. them and a bench of thirteen can
decide.
C.J. : Started by saying that Beg J. was Attorney General : states that he had curtailed
taken ill and removed to hospital. his arguments and so had the
His blood pressure was high and Solicitor General.
there was possibility of heart
trouble. Palkhivala : states that he is astonished that a
suggestion is made that he should
In any event, there will be no have no right to reply. He points
hearing today in view of the fact out that the time taken on the
that Dwivedi J. was indisposed petitioner side was 31 days plus 4
due to diarrhea but he will be able days for his reply making 35 days.
to sit tomorrow. The time taken by the other side is
also 35 days.
C.J. : stated that Beg J. is advised
rest in hospital for one week and He further points out that on
thereafter further rest for three March 6, 1973, it was decided
weeks at home and he read from in Chambers that if Beg J. was
the medical opinion. advised rest beyond March 12,
1973, the matter would continue
C.J. : stated that the consensus among with 12 Judges.
his colleagues was that the matter
should go on with 12 judges from Daphtary : Last time it was agreed that if Beg
tomorrow i.e. Friday, March 23, J. could not attend, 12 Judges will
1973. continue.

Palkhivala : stated that he takes it that the Attorney General : says that if Palkhivala is to
sitting will be both on Friday and be permitted an oral argument
Saturday. and Beg J. is not to participate,
he is instructed to state that there
162
is no further point in his clients C.J. : Informed the parties that they will
the Union of India continuing to consider the matter and intimate
participate. them.

Advocate General of Maharashtra : I join in the After about an hour Court Master
[Seervai] view expressed by the Attorney informed the parties that the
General. There is no point in our matter is posted tomorrow at
participating in the case further. I 10-30 am for Orders and further
had to submit written arguments hearing.
and there was no time for me on
certain important points. There is On March 23, 1973 the bench assembled
no reason why written arguments in court without Justice Beg “in a tense
cannot be submitted by the other atmosphere”.14 Before the Chief Justice could
side. state his decision, Palkhivala diffused the
tension by requesting that the hearing may be
Hegde J. : This is not the place where this treated as closed and that he would file written
sort of thing is done. This is like a submissions.
boycott. We may next be told that
if we do not decide in a particular Today, My Lords, is the 67th day of the hearing
way somebody will not participate. of the case and tomorrow is scheduled to be
the last day. This case, My Lords, is beyond
Chandrachud J.: Mr. Attorney, your participation question one of the most momentous in world
now involves listening to the reply. history and probably the most important in the
history of democracy and, My Lords, it would
A.B.D. : Reminded the court of the decision be a thousand pities if the real legal issues
taken on March 6, 1973, to the arising in the case get clouded or sidetracked
effect that the matter would go on by pettiness, bitterness or acrimony. I have,
with 12 Judges if Justice Beg was My Lords, therefore, been thinking over the
indisposed. At that time neither the matter arising out of the unfortunate illness
Attorney General nor the Advocate of the Hon’ble Mr. Justice Beg. If my learned
General of Maharashtra made any friends are anxious that the Hon’ble Mr. Justice
demur and the suggestion was Beg should participate in the judgment, let me
also made that what was said make it abundantly clear that the Petitioner
should be minuted. At that time
14 T. R. Andhyarujina, The Kesavananda Bharati
Hegde J. stated that the decision Case : The Untold Story of Struggle for Supremacy
was made and there would be no by Supreme Court and Parliament page 36 (2011,
Universal).
further meeting in the Chambers.
163
is no less eager that every single one of your for liberty to put in my brief points of reply in
Lordships, including the Hon’ble Mr. Justice writing say by tomorrow evening or Sunday
Beg, should participate in the judgment. morning. 15

It has been suggested that the Hon’ble Mr. Justice Beg recovered from his illness and
Justice Beg may feel better and may be able to the judgments of the court were delivered on
take part in the formulation of the judgment. If, April 24, 1973. Chief Justice Sikri retired on
My Lords, this is the possibility, I would be as April 25, 1973. The government superseded
happy as anyone else in this Court room if the the three seniormost judges of the Supreme
Hon’ble Mr. Justice Beg can take part in the Court -- Justices Shelat, Hegde and Grover by
Judgment. If this has to happen, My Lords, appointing Justice A.N. Ray as Chief Justice
question is whether I should continue with my of India. The three superseded judges who
oral arguments or request your Lordships to had decided Kesavananda Bharati against the
treat the oral arguments as closed and ask government promptly resigned.

*******

15 T. R. Andhyarujina, The Kesavananda Bharati


Case : The Untold Story of Struggle for Supremacy
by Supreme Court and Parliament page 37 (2011,
Universal).

164
30th Hearing, 3:40PM, Thursday, December 21, 1972, Hand Written Manuscript of Hearing Maintained by Anil B. Divan

165
30th Hearing, 3:40PM, Thursday, December 21, 1972, Hand Written Manuscript of Hearing Maintained by Anil B. Divan

166
34th hearing, Thursday, January 11, 1973, These excerpts are from typed notes prepared by Anil B. Divan.
The typed notes are based on separate hand written notes recorded in court.
167
34th hearing, Thursday, January 11, 1973, These excerpts are from typed notes prepared by Anil B. Divan.
The typed notes are based on separate hand written notes recorded in court.
168
34th hearing, Thursday, January 11, 1973, These excerpts are from typed notes prepared by Anil B. Divan.
The typed notes are based on separate hand written notes recorded in court.
169
Typed record of minutes prepared by Anil B. Divan. Also see T.R. Andhyarujina, The Kesavananda Bharati Case :
The Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 34-36 (2011, Universal)
170
Typed record of minutes prepared by Anil B. Divan. Also see T.R. Andhyarujina, The Kesavananda Bharati Case :
The Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 34-36 (2011, Universal)
171
Typed record of minutes prepared by Anil B. Divan. Also see T.R. Andhyarujina, The Kesavananda Bharati Case :
The Untold Story of Struggle for Supremacy by Supreme Court and Parliament page 34-36 (2011, Universal)
172
General Photographs

173
General Photographs

174
General Photographs

175
General Photographs

176
General Photographs

177
General Photographs

178
Anti Defection Law in India,
a Study of Emerging Problems
and Issues
Atmaram N.S Nadkarni*

Anti-Defection in some of the States, structure of the parliamentary democracy.


especially Goa, Nagaland, Bihar, Karnataka,
Arunachal Pradesh and recently Uttarakhand, Essentially Articles 102 (2) and 191 (2) of the
make an interesting case study for a student of Constitution of India broadly mentions that an
Constitutional law. elected member would attract disqualification,
if such member voluntarily offers up his
No sooner that the Anti-Defection law was membership of a political party; if he votes or
passed, by way of the 52nd Amendment withdraws from voting in such House contrary
to the Constitution of India, it was met with to any direction issued by his party or anyone
severe oppositions on logic, on the grounds authorized to try and do so, without obtaining
that it impinged on the right to free speech prior permission.
of legislators. The Supreme Court had the
occasion to lay down the law on the 10th The provisions were with relevance to
schedule on a PIL filed in the famed Kihoto mergers of political parties. Importantly, it
Hollohon vs Zachillhu and Others was seen that in the 1985 Act, a ‘defection’
reported in (1992) Supp. 2 SCC 651. This by 1/3rd of the elected members of a political
PIL had challenged the constitutional validity party was considered a merger and finally the
of the law, but the Supreme Court upheld 91st Constitutional Amendment Act, 2003,
the constitutional validity of 10th schedule brought about a change wherein at present
and held that the law does neither impinges at least two-thirds of the members of a party
upon the freedom of speech and expression have to be in favour of a “merger” for it to
nor subverts the democratic rights of elected have validity in the eyes of the law. There is
members, and further held that the law does no disqualification to be incurred when a
not violate any rights of free speech or basic legislature party decides to merge with another
party and such decision is supported by not

*Senior Advocate, former Advocate General of Goa, and


less than 2/3rd of its members.
Additional Solicitor General, Supreme Court of India.

179
Similarly, in yet another judgement wherein the pronounce its verdict on the 10th schedule to

Hon’ble Supreme Court had another occasion the Constitution of India.

to decide as regards the 10th schedule was I would first take, for analysis, and to discuss
in the case of Ravi Naik vs Union Of India the emerging problems and issues, in the
(1994) Supp. 2 SCC 641, wherein the question Goa case which arose in the early nineties
before the Supreme Court was as to whether, immediately after enactment of the 10th
If only the resignation constitutes “voluntarily schedule to the Constitution by the Parliament
giving up” of membership of a political party, which was added by the 52nd amendment on
and the Supreme Court held that there is a and from 1st March, 1985.
wider meaning of the words “voluntarily giving
The provisions as to disqualification on
up membership” and that inferences can be
ground of defection, powers of the speaker
also drawn from the conduct of the members.
in adjudicating the matter, exemption and
Thereafter, the Supreme Court in G. decisions on disqualifications are all matters
Vishwanathan v. Hon’ble Speaker Tamil which have been provided for therein. In the
Nadu Legislative Assembly, Madras and 10th schedule as was enacted, Clause 7
Anr reported in 1996 (2) SCC 353 while thereof provided for bar of jurisdiction of Courts,
dealing with the issue  of whether in a given which came to be declared invalid, for want of
situation, if a member once expelled from one ratification in accordance with the proviso to
party and subsequently he joins another party Clause 2 of Article 368 as per majority opinion
after being expelled, would it then be considered in Kihoto Hollohan vs Zachillhu and Others
as having voluntarily given up his membership, (Supra).
to which the Supreme Court decidedly held
Despite this anti-defection law finding its
that where a member is expelled, he is treated
place in the Constitution of India, in the nature
as an unattached member in the house but
of the 10th Schedule, ingenuities have seen
he continues to be a member of the old party
no bounds in the countries polity trying to get
as per the Tenth Schedule. However, if such
over the rigours of this law. While the kind of
member joins a new party after being expelled,
problems that have emerged are manifold, but
he would be said to have voluntarily given up
the basic issues are basically the “impartial role
membership of his old party.
of the Speaker”, in rendering a correct decision
In more recent Judgements arising out of in accordance with law, and the consequential
Arunachal Pradesh in the matter of Nabam role of the “Governor of the State” have all come
Rebia and Bamang Felix vs Deputy in for heavy criticism. And perhaps it would not
Speaker And Ors , 2016 (8) SCC 1 and be out of place to state that in very many cases
Uttarakand in the matter of Union Of India the criticism against the Speaker as well as the
vs Harish Chandra Singh Rawat and Governor having failed at times to uphold the
Another 2016 (16) SCC 744, the Hon’ble dignity and majesty of their august office is not
Supreme Court had yet further occasions to completely unjustified.

180
Goa, a tiny territory in India was liberated In 1990 Goa had a defection caused by the
from Portuguese rule on December 19, 1961. splitting of a National Party (at the state level)
The Supreme Court of India has judicially held whereby the Speaker himself defected in order
that the ‘Liberation’ of Goa is a ‘Conquest’ by to become the Chief Minister and this passage
the Indian Army. Goa, Daman and Diu were was made smooth by installing a pro tem Chief
formed and included as a ‘Union Territory’ in Minister for a period of 15 days. The Speaker
the Indian Constitutional System. We had then who became the Chief Minister ultimately
a Lt. Governor who was aided and advised by came to be disqualified by an Order passed
his Council of Ministers headed by the Chief by a Member of the Legislative Assembly.
Minister. Unlike the ‘State’, the administration The Order came to be finally upheld by the
of a Union Territory is done as a Centrally superior Constitutional courts. Immediately
Administrated Area and decisions are taken by thereafter, Goa experienced another spell of
the Lt. Governor upon the aid and advice of defections. The two noted Judgements of
the Council of Ministers headed by the Chief Ravi Naik and Kilhoto Hollohon have laid down
Minister. The Lt. Governor is essentially the important pronouncements of Law, one on
representative of the Central Government the point of defection and split and another
whose powers differ from the mere ceremonial on the question of the power of Review by
role assigned to the Governor of a ‘State’. Goa the Speaker. Probably in a lighter vein, one
was conferred statehood on 30th may 1987. may not be incorrect in stating that had these
defections not taken place, the Apex Court
The 10th Schedule was essentially
may not have had the opportunity to lay down
intended to provide good, stable and effective
such important judgements.
governance so that it was not manipulated
by endangering its stability by politicians who In October 2000 there were defections again
came to be called ‘Aayarams’ and ‘Gayarams’. by which the Members of the Legislature split
Most of these matters which went up to the and joined another party and a new Government
Supreme Court were from the smaller States was formed. Between October 2000 and until
of the Northeast or Goa which made a January 2005, there were also some splits or
significant contribution to the law of defection some crossovers or merger of parties which
under the Constitution of India on account of took place in the State. At this time the Anti-
the unstable governance caused by frequent Defection Law came to be amended whereby
political defections. the one-third split was done away with and it
was provided that only the merger of a party
It is a matter of record that till 1990,
would be recognised. Goan politicians had an
the Government’s in Goa were stable and
answer to this also. In February 2005 while
have thereafter been under some sort of a
bringing down the Government some MLA’s
spell whereby defectors formed unstable
resigned and the Goan voters had them return
governments causing what we may call
to power.
“progressive deterioration” in the State.

181
Of late, in Arunachal Pradesh as well as in occupies high position the same carries with
the State of Uttarakand, there were similar it several responsibilities, at times sacrifices
problems reported. The role of the Speaker and at times even need to practice physical
was also questioned in both these matters. aloofness. The Speaker is the only person who
Ultimately, the matters landed before the is allowed to resign from his party once he is
Hon’ble Supreme Court and by two different elected as a Speaker. This is provided for in
judgments delivered by the Constitution bench, the 10th schedule so as to maintain complete
the matters came to be resolved and the final impartiality in his performance and duties as a
verdict was pronounced, laying down certain Speaker.
parameters.
In Kihoto Hollohon, Hon’ble Mr. Justice
All these Judgments of the Hon’ble Supreme Venkatachaliah, former CJI, (as his lordship
Court including Kihoto Hollohon, Ravi Naik, then was) has had the occasion to write a
G. Viswanathan V, Nabam Rebia and few paragraphs about the August office of the
Bamang Felix, Harish Chandra Singh Speaker. An erudite Judgment which considers
Rawat lay down important legal interpretations several aspects of the matter including
as regards various provisions of the constitution vesting of the power in a person who could
of India. Especially dealing with the function, be politically inclined and loaded in favour of
role, of the elected representatives. The a political party but the Constitution Bench in
major emerging problem and issues arising his judgment expected the person occupying
therefrom, bring the whole polity as well as the post of speaker to rise above himself and
certain other important aspects of governance in all other things, to deliver a verdict, as is
into question. Allegations are made, sometimes expected of a Judge while adjudicating a
irresponsibly and mala fides are alleged on matter. Quoting from Justice Venkatachaliah’s
parties and grounds. Ultimately, as it does turn majority judgement :
out that the basic issue which has surfaced in
“119. …The Speakers/Chairmen
all these decided cases is the prime role of a
hold a pivotal position in the scheme of
speaker who could have resolved the matter
Parliamentary democracy and are guardians
at his level in case of, even handed ruling in
of the rights and privileges of the House.
accordance with the provisions of law.
They are expected to and to take far reaching
Two other important decision dealing with decisions in the functioning of Parliamentary
Defections are Balchandra L Jarkiholi & democracy. Vestiture of power of adjudicate
Ors. vs B.S.Yeddiyurappa & Ors reported questions under the Tenth Schedule in such
in 2011 (2) SCC 1, pertaining to State of a constitutional functionaries should not be
Karnataka, and Dr. Mahachandra Prasad considered exceptionable.
Singh vs Chairman, Bihar Legislative 2004
130. …
(8) SCC 747, pertaining to state of Bihar.
(8). …The tenure of the Speaker who is
It is of utmost importance that when a person
the authority in the Tenth Schedule to decide

182
this dispute is dependent on the continuous the cases, the Chief Minister had passed his
support of the majority in the House and, Official Budget and moments thereafter the then
therefore, he (the Speaker) does not satisfy Governor had dismissed the Government. Could
the requirement of such an independent a Government that has just passed the Financial
adjudicatory authority; and his choice as the Bill be dismissed by the Governor? Does the
sole arbiter in the matter violates an essential Governor enjoy such powers? Similarly in
attribute of the basic feature. 2005, yet another Government had secured
the Vote of Confidence and this was officially
180. …The Speaker’s office is undoubtedly
communicated by the Speaker to the Governor.
high and has considerable aura with the
Yet the Governor dismissed the Government.
attribute of impartiality. This aura of the office
was even greater when the Constitution was Could the Governor have dismissed the
framed and yet the framers of the Constitution Government in the face of the Report of the
did not choose to vest the authority of Speaker when he had secured a Vote of
adjudicating disputes as to disqualification of Confidence in the House? Did the Governor
members to the Speaker; and provision was exercise his powers Constitutionally? Should
made in Articles 103 and 192 for decision of the Governor, if he was not satisfied with
such disputes by the President/Governor in the Vote of Confidence, have asked the
accordance with the opinion of the Election Chief Minister to secure yet another Vote of
Commission. To reason is not far to seek.” Confidence? These matters are food for deep
thought to a student of Constitutional Law.
For a student of Constitutional Law, it is
interesting to make a thesis on these defections There are great shortcomings in the Law of
in all these State vis-à-vis the Constitutional Defection – the power to adjudicate in matters of
paradox. If a careful analysis is made, a defection is left to the Speaker. Since 1986, has
student of Constitutional Law or Political the Speaker fallen short of the Jurisprudential
Science would not find it difficult to conclude Standards expected in matters of adjudication?
that the Governments in all these States gain Once the Constitution entrusts the Speaker
stability or face instability depending upon with this power and the Speaker passes such
several things including the role of the Speaker, Orders, to what extent can the Governor of
role of the Governor and at times as is alleged, the State ignore such Orders? Experience has
the political dispensation at the Central level. shown and history has proved that whenever
This is essentially because the total number of the Government is threatened by defection or
MLA’s in these States, are hardly in the number loss or support, the Speaker is faced with a
of between 40 to 80 and I do not think there is Disqualification Motion filed by his own party
any scope of increasing this number. and then, in some matters, it is seen that ad
interim reliefs are granted so as to affect the
In all these matters whether in 1992, 1994,
count of votes. Despite these examples in the
2004, 2011 or 2016, the Governor played
State and the State having shown to the entire
an extremely crucial role. Indeed, in one of

183
nation, that such shortcomings are writ large Supreme Court in all these judgments while
in the 10th Schedule and in the Constitution, laying down various parameters have decided
should the Parliament not address itself and and addressed matters which have arisen
consider to remedy this situation? Or has our before it, but a judgment of the constitutional
Parliamentary system not matured enough court cannot encompass what a parliament
to effectively remedy situations through the can do by exercising its amending powers.
making of laws when faced with defectors and
This is a significant contribution by the State
placed in such a predicament?
if one looks at the matter in its entirety in a very
The happenings in these states in Goa as well positive way as a readymade example to bring
as north east have proved much beyond doubt in Constitutional reforms and amendments to
and with glaring examples that the Constitution remedy the defects and eliminate loopholes
has certain areas which need to be addressed, so that the greed for power and money, if not
given the fact that the Government under the completely wiped out, is at least reduced and
Constitution is intended to last for a term of controlled to a great extent, reaffirming the
five years or at least until it has support on principles of ethics intended by the framers of
the Floor of the House. Our Constitution does the Constitution.
not intend governance of a State to be done
Perhaps the Governors or Speakers
by forming or convening Governments in the
may have felt that they were doing the right
corridors of the Raj Bhavan. Bommai’s case
thing. But surely as a mature democracy, the
and all other Rulings clearly militate against
federation and federal structure of Indian polity
such attempts. After all, we have what we call
cannot leave matters to the wisdom of one or
the “Rule of Law” and not the “Rule of Man”!
two individuals. In our country to ensure the
The governance of a State is required to be ‘Rule of Law’ only through judicial decisions
carried out in accordance with the Constitution. by laying down norms and dictums through
The happenings of events since 1990, have constitutional benches cannot be called
demonstrated that in such matters, the governance.
intended Constitutional provisions have fallen
It is essentially for parliament to lay down
short or lack in their efficacy when read with
the norms, parameters as well as the rules of
the 10th Schedule of the Constitution and the
the Game, the experiences in all these states
powers of the Governor, under the Constitution
is a good enough example to remedy the
and these emerging problems and issues,
emerging issues arising out of various cases of
have not yet been addressed. The Hon’ble
anti-defection under our Constitution.

*******

184
The Supreme Court on the
Constitutional Position of the
President of India: An Analysis
Dr. Lokendra Malik*

1. Prefatory in certain areas the President of India can act on


his own discretion either by rejecting the advice
The issue pertaining to the constitutional of the Council of Ministers or without receiving
position and powers of the President of India has any such advice. The author also holds this view.
always been quite wrangled in the country ever The matter relating to the constitutional powers
since the commencement of the Constitution. and position of the President of India has come
Generally it is assumed that the position of the into light on various occasions particularly during
President of India is analogous to that of the the President’s elections and formation of the
British Monarch who is a constitutional head of Governments in the Centre, but it was never
the British Government and like the Monarch the decided by the Supreme Court directly till 1974
President of India is also a constitutional head of in the Samsher Singh case.1 The first President
the Union Government who is obliged to act on Dr Rajendra Prasad and the first Prime Minister
the advice of the Council of Ministers headed Pandit Jawaharlal Nehru likewise dealt with this
by the Prime Minister as per the mandate of issue on the question of Hindu Code Bill in early
Article 74(1) of the Constitution. As such, a 1950s.
school of constitutional scholars opines that the
President of India is a rubber stamp and has In the present paper the author presents
no say power in the decision-making process of an analysis of different cases decided by
the Union Government. It is said that whatever the Supreme Court which either directly or
is recommended to him by the Union Cabinet indirectly dealt with the constitutional position
headed by the Prime Minister, he is bound to of the President of India. This is an exercise to
act on the same. However, there is another view present the juristic contribution of the Supreme
also. Some constitutional pundits in the country Court on this issue as the law declared by the
hold a different view and opine that the President Supreme Court of India is law of the land. Up
of India is not a replica of the British Monarch and to a large extent, the Court has given a quietus
he is not a rubber stamp at all. They state that to the controversy after making observations
* Advocate, Supreme Court of India 1 Samsher Singh v. State of Punjab, (1974) 2 SCC 831.

185
on this issue in a number of judgments. is prescribed in the Constitution during which
2. We, the People of India, the President has to act on the advice of the
adopted the Parliamentary form Council of Ministers and it gives some space
of Government on the lines of to the President to delay the decisions of the
Westminster system Government.

On 26th November 1949, the Founding The Supreme Court has observed that the
Fathers gave us a written Constitution President of India is always bound to have a
with independent Judiciary for protecting Council of Ministers even if the Lok Sabha is
the Fundamental Rights of the people and dissolved and he cannot exercise his powers
interpreting the Constitution as well as the and functions without the aid and advice of
statutes. In this Constitution, they established the Council of Ministers.5 The logic behind this
the Parliamentary form of Government on the theory is that the Constitution has envisaged
lines of the Westminster system in which the the Parliamentary form of Government in
Head of State, that is the British Monarch, the country6 and in that system the Council
is a constitutional head of the Government of Ministers headed by the Prime Minister is
and the real powers are exercised by the collectively responsible to the Lok Sabha7, the
Cabinet headed by the Prime Minister2 who popular chamber of Parliament, and only the
is responsible to the House of Commons, the Lok Sabha has power to make or unmake the
popular chamber of British Parliament. The Governments. The Council of Ministers gets a
President of India is a creation of the Constitution periodical mandate from the people who are
and derives all his powers and functions from sovereign and the President does not receive
the Constitution and is required to act within the any such mandate to rule the country. Therefore,
four corners of the Constitution as mandated the President of India is not responsible to the
under Articles 53 and 74 of the Constitution. Parliament. The acts and omissions committed
He exercises his powers and functions on the by the elected Government are liable to be
aid and advice of the Council of Ministers with discussed and scrutinized by the Parliament
the Prime Minister at its head and in practice and not by the President. The President is not
the decisions taken by the Council of Ministers master of the Prime Minister or other ministers.
are binding on the President.3 He can only Until and unless the Government ceases to
ask the Council of Ministers to reconsider its hold the majority support in the Lok Sabha, the
decisions once but thereafter he is bound President cannot disturb it. It is the Parliament
to accept the reconsidered decisions of the
&1978.
Council of Ministers.4 However, no time limit
5 U. N. R. Rao v. Indira Gandhi, AIR 1971 SC 1002.
2 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 6 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC
549. 549; Samsher Singh v. State of Punjab, (1974) 2 SCC
3 Article 74(1) of the Constitution of India. 831.
4 42nd and 44th Constitutional Amendment Acts, 1976 7 Article 75(3) of the Constitution.

186
which supplies oxygen to the Council of courts find that the Government has taken
Ministers to run the administration as per the any action in violation of the Constitution,
constitutional provisions. The President does the same can be declared unconstitutional
not get any mandate from the people to run and can be set aside accordingly. There are
the administration. The founding fathers had many such examples where the courts have
rejected the American Presidential form of declared laws invalid and unconstitutional in
Government. The President has a limited role their writ and other jurisdiction. Articles 32
in our constitutional scheme and he has to and 226 of the Constitution are the important
act within the four corners of the Constitution. tools for exercising the power of judicial review,
The moment he violates the Constitution, which the Supreme Court has held as a part
he becomes liable for impeachment by the of the basic structure of the Constitution,
Parliament. not to be abrogated even by the Parliament
by way of amendment under Article 368 of
the Constitution.9 The independent judiciary
3. The Indian Government is encourages the Government to act responsibly
constitutionally controlled and constitutionally.

The Union Government is constitutionally The power of judicial review is in full swing
controlled and is bound to work as per the in our country and the Government carries on
constitutional norms and principles. The the administration carefully to avoid any judicial
Supreme Court and the High Courts are scrutiny. All organs of the Government such as
competent to exercise the power of judicial the Executive, the Legislature and the Judiciary
review for testing the validity of Government’s are required to act within the four corners of
actions- legislative or executive. The the Constitution and in case any one of them
Constitution accords a dignified and crucial violates the provisions of the Constitution,
position to the Judiciary. Judicial review in that act may be declared unconstitutional by
India is based on the assumption that the the writ courts exercising the power of judicial
Constitution is the supreme law of the land, review under Articles 32 and 226, respectively.
and all governmental organs, which owe their Although the President of India holds immunity
origin to the Constitution and derive their from judicial proceedings under Article 361 of
powers from its provisions, must function the Constitution, the validity of the Presidential
within the framework of the Constitution, and actions is also subject to judicial scrutiny.10 The
must not do anything which is inconsistent President cannot be made a party to the legal
with the provisions of the Constitution.8 In the
9 Kesavananda Bharati v. State of Kerala, AIR 1973 SC
process of judicial review, if the constitutional 1461; Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC
8 M. P. Singh, V. N. Shukla’s Constitution of India, 11th 2299; S. R. Bommai v. Union of India, (1994) 3 SCC 1.
Edition, 2008, Eastern Book Company, Lucknow, at 10 Rameshwar Prasad v. Union of India, (2006) 2 SCC
A-54. 1.

187
proceedings, yet the Government would have declares the law but during the interpretation
to shield the President’s action in the court of process of the Constitution and the laws,
law. Article 361 of the Constitution does not sometimes it also makes the law that is generally
empower the President to go beyond the called the judge-made law in the jurisprudential
Constitution. In fact, as mentioned earlier, if the sense. The law declared by the Supreme Court
President violates the Constitution, he may be becomes the law of the land and the judgments
impeached by the Parliament under Article 61 of of the Supreme Court constitute the source of
the Constitution.11 In this way, the Government law. Nonetheless, the Supreme Court is not
is fully constitutionally controlled and has to bound by its own judgment and can overrule
act within the constitutional boundaries. The its previous judgments as and when required.
President is also empowered to encourage the Some striking cases of the judge-made law
Government to run the administration as per are found in our Constitutional Law and the
the constitutional provisions. He can seek any doctrine of basic structure propounded by the
information relating to the Union Government Supreme Court in the Kesavananda Bharathi v.
from the Prime Minister and the latter is obliged State of Kerala14 is one of the finest examples
to supply the same.12 In fact, as per his oath of of the judge-made law in our country which
office, the President is duty bound to preserve, has protected the constitutional identity and
protect, and defend the Constitution and the dignity. Up to a large extent, the Supreme Court
laws.13 has contributed a lot that has been admired on
the global level. Many countries have imported
the Basic Structure Doctrine from our country.
4. The Law declared by the
Supreme Court is binding on all As stated above, the law declared by the
courts Supreme Court is binding on all courts and is
to be obeyed by all authorities, civil as well as
Article 141 of the Constitution stipulates that judicial as per the mandate of Article 144 of the
the law declared by the Supreme Court shall be Constitution. Since the commencement of the
binding on all courts within the territory of India Constitution, the Supreme Court and different
while Article 142 is a great tool in the hands High Courts have delivered a number of
of the Supreme Court for doing complete judgments relating to the issue of constitutional
justice between the parties in matters pending powers, functions and position of the President
before it and Article 142 cannot be diluted of India, and some of them have ultimately
even by a legislation. Under Article 141 of become the law of the land such as Samsher
the Constitution, the Supreme Court not only Singh case,15 decided by a Constitution Bench

11 S. R. Bommai v. Union of India (1994) 3 SCC 1. 14 AIR 1973 SC 1461.


12 Article 78 of the Constitution of India. 15 Samsher Singh v. State of Punjab, (1974) 2 SCC
13 Article 60 of the Constitution of India. 831.

188
of seven judges unanimously. Presently, it can British Parliamentary Government system
be noted that the Samsher Singh judgment and the President of India is only a formal or
is the best authority on the matter relating to constitutional head of the Union Government
the constitutional position of the President of and the real executive powers are vested in the
India and is being followed by the courts of law Ministers or the Cabinet headed by the Prime
regularly since its inception. The Samsher Singh Minister. This case was based on a petition filed
ruling has given a quietus to the controversy under Article 32 of the Constitution preferred
up to a large extent. by six persons, who purported to carry on the
business of preparing, printing and publishing
This is a matter of fact that right or wrong, and selling text books for different classes in the
whatever judgment is pronounced by the schools of Punjab, particularly for primary and
Supreme Court, that is binding on all courts and middle classes, under the name and style “Uttar
become the law of the land though there is no Chand Kapur and Sons”. It was alleged that
guarantee that the judgments of the Supreme the Education Department of the Government
Court may not be wrong. Whenever a researcher of Punjab had in pursuance of their so-called
examines and analyzes the judgments of the policy of nationalization of text books, issued
Supreme Court, a number of discrepancies may a series of notifications since 1950 regarding
be found. Even the Supreme Court overrules its the printing, publication and sale of these
judgments frequently. Recently, the Supreme books which had not only placed unwarranted
Court has overruled the ADM, Jabalpur restrictions upon the rights of the petitioners
judgment in the Right to Privacy judgment. The to carry on their business but had practically
matter pertaining to the constitutional position ousted them and other fellow traders from the
of the President has also seen many ups and business altogether. Though the case was not
downs in the judicial circle and different kind of directly related to the constitutional powers
interpretations have been received on this issue and position of the President of India, during
from time to time. Let us go through some of the course of judgment, the Court narrated the
the judicial verdicts on this issue. nature of the governing system of the country
and stated that the President of India is only a
constitutional head of the Union Government
5. Landmark cases who has to exercise his powers and functions
on the aid and advice of the Council of Ministers
5.1 Ram Jawaya Kapur
judgment headed by the Prime Minister. In fact, this was
the first case when the Supreme Court spoke
In Rai Sahib Ram Jawaya Kapur v. State of on the issue. During that time, the controversy
Punjab,16 the Supreme Court of India observed regarding the constitutional position of the
that the Constitution of India has adopted the President of India was on peak as the then
16 AIR 1955 SC 549. President Dr. Rajendra Prasad and the then
189
Prime Minister Pandit Jawaharlal Nehru had Ministers of the Cabinet.17
indulged in correspondence on the issue
frequently. After the commencement of the Constitution
of India, the instant judgment was a noteworthy
Speaking on behalf of a Constitution Bench judicial pronouncement wherein the Supreme
of the Supreme Court, the then Chief Justice Court explained the contours of executive
Mukherjea observed in this case: powers in relation to Union and States
and furthermore threw some light on the
Our Constitution, though federal in constitutional position of the President of India
its structure, is modelled on the British and Governors of the States and held that both
Parliamentary system where the Executive is of them are the constitutional heads like the
deemed to have the primary responsibility for British Monarch and the real powers are to be
the formulation of governmental policy and exercised by the Council of Ministers which is
its transmission into law though the condition collectively responsible to the Parliament and
precedent to the exercise of this responsibility the State Legislative Assemblies respectively.
is its retaining the confidence of the legislative During the initial days of the Constitution, this
branch of the State. The executive function judgment set the controversy at rest up to some
comprises both the determination of the extent and it was widely cited in academic
policy as well as carrying it into execution. This writings. Yet, rather, the debate relating to the
evidently includes the initiation of legislation, the constitutional position of the President erupted
maintenance of order, the promotion of social on different occasions.
and economic welfare, the direction of foreign
policy, in fact the carrying on or supervision of It is submitted that the remarks of the
the general administration of the State. Supreme Court in this judgment about
the constitutional position of the President
In India, as in England, the Executive has to of India are constitutionally sound and
act subject to the control of the Legislature; justified, as per the letter and spirit of the
but in what way is this control exercised by Parliamentary Government system envisaged
the Legislature? Under Article 53(1) of our in the Constitution. The Founding Fathers had
Constitution, the executive power of the Union intended to make the President of India as a
is vested in the President but under Article 74 constitutional head of the Government and real
there is to be a Council of Ministers with the powers are vested in the Council of Ministers
Prime Minister at the head to aid and advise headed by the Prime Minister on the lines of
the President in the exercise of his functions. the British Monarch who is a titular head of the
The President has thus been made a formal Government. The elected Government headed
or constitutional head of the Executive and by the Prime Minister is collectively responsible
the real executive powers are vested in the 17 Id. at 556.

190
to the House of the People. of Ministers. It is not the personal satisfaction
of the President. In other words, the President
of India cannot bypass the Council of Ministers
5.2 R. C. Cooper judgment in issuing the ordinance. It is the Council of
Ministers which has final word in these kind
In R. C. Cooper v. Union of India,18 while of matters. The judgment indicates that the
delivering the majority judgment of the Supreme President of India is a mouthpiece of the Council
Court, Shah J., observed: of Ministers. Up to a large extent the judgment
is constitutionally correct but in this case the
Under the Constitution, the President Supreme Court missed a good opportunity
being the constitutional head, normally acts to examine the constitutional position of the
in all matters including the promulgation of President in detail and left some key questions
an Ordinance on the advice of his Council open. The Court only made some brief remarks
of Ministers. Whether in a given case the on the constitutional position of the President
President may decline to be guided by the of India.
advice of his Council of Ministers is a matter
which need not detain us. The Ordinance is
promulgated in the name of the President and 5.3 U. N. R. Rao judgment
in a constitutional sense on his satisfaction:
it is in truth promulgated on the advice of his U. N. R. Rao v. Indira Gandhi20, is a landmark
Council of Ministers and on their satisfaction.19 judgment of the Supreme Court of India
relating to the concept of the Parliamentary
The instant judgment was identified with Government system in the country. In this
the Ordinance-making power of the President judgment, the Supreme Court clearly observed
of India under Article 123 of the Constitution that in the Indian constitutional scheme the
which was decided by an eleven-Judge President of India cannot act without the aid
Constitution Bench wherein the validity of the and advice of the Council of Ministers, even if
Banking Regulation Ordinance was challenged. the Lok Sabha is dissolved, and the President is
In this case also the Supreme Court held that always bound to have the Council of Ministers
the President of India exercises all his powers to aid and advise him in the exercise of his
including the Ordinance-making power on the functions as mandated under Article 74(1) of
advice of the Council of Ministers headed by the the Constitution. In other words, the Court
Prime Minister and the real powers are vested stated that the President cannot exercise his
in the Council of Ministers. The satisfaction of constitutional powers without the advice of
the President is the satisfaction of the Council the elected Government headed by the Prime
Minister.
18 AIR 1970 SC 564.
19 Id. at 586, 587. 20 (1971) 2 SCC 63: AIR 1971 SC 1002.

191
In this case, the appellant had applied for a of Article 74(1) of the Constitution and the
writ of quo warranto and for a declaration that President is always bound to have a Council
the respondent, that is, Mrs Indira Gandhi, had of Ministers even if the Lok Sabha is not in
no constitutional authority to hold the office existence, that is, it is dissolved. The Supreme
of and to function as the Prime Minister. The Court clearly stated that the President of India
Madras High Court had dismissed the petition cannot exercise the executive powers without
and the appeal was filed before the Supreme the advice of the Council of Ministers and if
Court with Certificate. The appellant argued he does so, it will be unconstitutional and will
that the moment the Lok Sabha was dissolved be liable to be set aside by the court of law.
by the President under Article 85(2) of the Delivering the unanimous judgment of the
Constitution, the Council of Ministers ceased Supreme Court, Chief Justice Sikri observed:
to hold office. This argument was further
sought to be reinforced by Article 75(3) of the Article 52 provides that there shall be a
Constitution which provides that the Council President of India and Article 53(1) vests the
of Ministers shall be collectively responsible to executive power of the Union in the President
the Lok Sabha. How the Council of Ministers and provides that it shall be exercised by him
could be responsible to the Lok Sabha when either directly or through officers subordinate
the latter had been dissolved, the appellant to him in accordance with this Constitution.
contended strongly. The appellant also The last five words are important in as much
contended that the President of India could run as they control the President’s action under
the Government with the help of advisers to Article 53(1). Any exercise of the executive
maintain the continuity as he is authorized for power not in accordance with the Constitution
doing so under Article 53(1) of the Constitution will be liable to be set aside. There is no doubt
where he can exercise the executive power that the President of India is a person who has
either directly or through officers subordinate to be elected in accordance with the relevant
to him. provisions of the Constitution but even so he is
bound by the provisions of the Constitution.21
A five-Judge Constitution Bench of the
Supreme Court unanimously held that Articles
74 and 75 of the Constitution establish the Further, C. J. Sikri went on to add:
Parliamentary form of Government in the
country and the President of India is only a It will be noticed that Article 74(1) is
formal or constitutional head of the Union mandatory in form. We are unable to agree
Government who has to act on the aid and with the appellant that in the context the word
advice of the Council of Ministers with the “shall” should be read as “may”. Article 52
Prime Minister at the head in the exercise of is mandatory. In other words ‘there shall be
his powers and functions as per the mandate 21 Id. at 66.

192
a President of India’. So is Article 74(1). The must carry on the Government as best as he
Constituent Assembly did not choose the can with the aid of the services. As we have
Presidential system of Government. If we were shown above, Article 74(1) is mandatory and,
to give effect to this contention of the appellant therefore the President cannot exercise the
we would be changing the whole concept executive power without the aid and advice
of the Executive. It would mean that the of the Council of Ministers. We must then
President need not have a Prime Minister and harmonize the provisions of Article 75(3) with
Ministers to aid and advise in the exercise of Article 74(1) and Article 75(2). Article 75(3)
his functions. As there would be no ‘Council of brings into existence what is usually called
Ministers’ nobody would be responsible to the “Responsible Government”. In other words, the
House of the People. With the aid of advisers Council of Ministers must enjoy the confidence
he would be able to rule the country at least till of the House of the People. While the House of
he is impeached under Article 61.22 the People is not dissolved under Article 85(2)
(b), Article 75(3) has full operation. But when
It seems to us that we must read the word it is dissolved the Council of Ministers cannot
“shall” as meaning “shall” and not “may”. If naturally enjoy the confidence of the House of
Article 74(1) is read in this manner the rest of the People. Nobody has said that the Council
the provisions dealing with the Executive must of Ministers does not enjoy the confidence of
be read in harmony with it. Indeed they fall the House of the People when it is prorogued.
into place. Under Article 75(1) the President In the context, therefore, this clause must be
appoints the Prime Minister and appoints the read as meaning that Article 75(3) only applies
other Ministers on the advice of the Prime when the House of the People does not stand
Minister, and under Article 75(2) they hold dissolved or prorogued. We are not concerned
office during the pleasure of the President. The with the case where dissolution of the House
President has not said that it is his pleasure of the People takes place under Article 83(2)
that the respondent shall not hold office. on the expiration of the period of five years
prescribed therein, for Parliament has provided
Now comes the crucial clause three of for that contingency in Section 14 of the
Article 75. The appellant urges that the House Representation of Peoples Act, 1951.23
of the People having been dissolved this clause
cannot be complied with. According to him it The instant judgment of the Supreme
follows from the provisions of this clause that Court has clearly established that our country
it was contemplated that on the dissolution of is governed by the Parliamentary form of
the House of the People the Prime Minister Government and not by the Presidential form
and the other Ministers must resign or be of Government prevalent in the United States
dismissed by the President and the President of America. In the Parliamentary Government
22 Id. at 67. 23 Id. at 67-68.

193
framework which prevails in the United Ministers headed by the Prime Minister, and
Kingdom, the head of the State is recognized collectively responsible to the Lok Sabha,
as a titular head and the real powers are the lower House of the Parliament. The
exercised by the Cabinet headed by the Prime President of India is just a ceremonial head of
Minister. Same pattern has likewise been the Government who is bound to act on the
adopted in India by the Constitution-makers ministerial advice. All decisions are taken by
and the President of India cannot exercise his the elected Government and the President
constitutional powers without the aid and advice cannot intervene in the decision-making
of the Council of Ministers headed by the Prime process of the Government. As per Article 141
Minister. As stated earlier, the Supreme Court of the Constitution, the judgment delivered by
has categorically observed that the exercise of the Supreme Court becomes the law of the
the executive powers by the President of India land and this judgment has also become the
against the constitutional scheme is liable to be integral part of our governing system. In actual
set aside by the courts of law. The President constitutional practice, the President of India
of India is always bound to have a Council of always maintains a Council of Ministers even if
Ministers even if the Lok Sabha is dissolved. the Lok Sabha is dissolved and he cannot act
However, the researcher is of the view that without the advice of the Council of Ministers.24
circumstances may emerge when it may not This judgment strengthens the Parliamentary
be feasible for the President of India to receive Government system in our country and does
the advice of the Council of Ministers as the not leave any scope for the President to
latter could not be in existence or otherwise. bypass the Council of Ministers. The President
In such circumstances, it is submitted that the does not get any mandate from the people to
President of India may run the administration run the administration. He has to play his own
himself until further notice for conducting free role within the constitutional framework.
and fair elections and restoring the responsible
Government in the country as per the mandate
of his oath to preserve, protect and defend the 5.4 Samsher Singh judgment
Constitution and the law under Article 60 of
the Constitution. After all, the President is the Samsher Singh v. State of Punjab25 is a
guardian of the Constitution. great authority on the matter pertaining to the
constitutional position of the President of India
The instant judgment is constitutionally and the Governors of the States. In this case,
unique and is delivered in accordance with the issue was whether the President of India or
the spirit of the Constitution, a Constitution the Governor of a State, as the case may be,
which has envisaged the Parliamentary form 24 Neelam Sanjiva Reddy, Without Fear or Favour:
Reminiscences and Reflections of a President, Allied
of Government in the country under which
Publishers, 1989.
the power centre is located in the Council of 25 (1974) 2 SCC 831.

194
exercises all executive powers on the aid and Two opinions were handed down, one by
advice of the Council of Ministers or whether Chief Justice A. N. Ray for himself and four
there are powers, which they can exercise on of his colleagues and another concurring by
their own, that is, without receiving the aid and Justices V. R. Krishna Iyer for himself and P.
advice of the Council of Ministers. This case was N. Bhagwati. Chief Justice Ray analyzed
decided by a Constitution Bench comprising the various provisions of the Constitution
seven Judges of the Supreme Court and and some previous decisions of the Court
this is a landmark judgment pertaining to the to show that the Constitution envisaged the
constitutional position of the President of India. Parliamentary form of Government in the
This judgment has dealt with the issue in detail. country under which the President of India is
a constitutional head of the Union Government
The facts giving rise to the case were: The and the Governor is the constitutional head
services of two judicial officers of Punjab state of the State Government who act on the
were terminated by the Governor of Punjab. advice of the Council of Ministers except
Consequently, they challenged the orders where the Governor is expressly required by
of termination on the ground that powers of the Constitution to act in his own discretion.
removal of judicial officers under Article 234 The following propositions emerge from the
of the Constitution are to be exercised by the judgment of Ray, C.J.:
Governor in his personal capacity and not on
the aid and advice of the Council of Ministers Our Constitution embodies generally
headed by the Chief Minister. In support of their the Parliamentary or Cabinet system of
contentions, they relied on the Supreme Court’s Government of the British model both for the
decision in Sardari Lal v. Union of India26 wherein it Union and the States. Under this system the
was held that the satisfaction of the President or President is the constitutional or formal head
the Governor, in case of dismissal or removal of of the Union and he exercises his powers
government servants from service, to dispense and functions conferred on him by or under
with the holding of enquiry in the public interest, the Constitution on the aid and advice of
should be his own satisfaction. As such, he is to his Council of Ministers. Article 103 is an
exercise his powers individually and not on the exception to the aid and advice of the Council
aid and advice of the Council of Ministers. In this of Ministers because it specifically provides
case the order was challenged on the basis that that the President acts only according to the
it was signed by the Joint Secretary and was an opinion of the Election Commission.27
order in the name of the President of India and
that the Joint Secretary could not exercise any Further Ray, C.J. presented the constitutional
such authority on behalf of the President and the position of the President in these words:
President should decide the matter personally.
26 AIR 1971 SC 1547. 27 Id. at 840.

195
The President as well as the Governor is the to reinforce the theory so cardinal to the
constitutional or formal head. The President Parliamentary form of Government that the
as well as the Governor exercises his powers President or the Governor, as the case may be,
and functions conferred on him by or under is the constitutional head, who has to exercise
the Constitution on the aid and advice of his powers on the aid and advice of the Council
his Council of Ministers, save in spheres of Ministers except where the Constitution
where the Governor is required by or under expressly requires the Governor to act in his
the Constitution to exercise his functions discretion. Justice Krishna Iyer explained the
in his discretion. Wherever the Constitution nature of Indian Government system in these
requires the satisfaction of the President or words:
the Governor for the exercise by the President
or the Governor of any power or function, the Not the Potomac, but the Thames, fertilizes
satisfaction required by the Constitution is not the flow of the Yamuna if we may adopt a
the personal satisfaction of the President or riverine imagery.29
Governor but the satisfaction of the President
or Governor in the constitutional sense in In his erudite judgment, Justice Krishna Iyer
the Cabinet system of Government, that is, clearly observed that though the President
satisfaction of his Council of Ministers on whose of India is a constitutional head of the Union
aid and advice the President or the Governor Government, it cannot be said that he is a
generally exercise all his powers and functions. cipher or a rubber stamp. The President is the
The decision of any Minister or officer under highest constitutional functionary of the country
rules of business made under any of these two and in certain areas he can make a difference
Articles 77(3) and 166(3) is the decision of the by exercising his rights under Article 78 of the
President or the Governor respectively. These Constitution. Justice Krishna Iyer summed up
articles did not provide for any delegation. the constitutional position of the President in
Therefore, the decision of Minister or officer these words:
under the rules of business is the decision of
the President or the Governor.28 We declare the law of this branch of our
Constitution to be that the President and
It is worthwhile to state that in the instant Governor, custodians of all executive and
case Justice V. R. Krishna Iyer delivered a other powers under various Articles, shall,
separate but concurring judgment for himself by virtue of these provisions, exercise their
and Justice P. N. Bhagwati. He delivered a well- formal constitutional powers only upon and in
documented opinion analyzing the decisions accordance with the advice of their Ministers
of the Court, the views of the Constituent save in a few well known exceptional situations.
Assembly members and some eminent jurists Without being dogmatic or exhaustive, these
28 Ibid. 29 Id. at 861.

196
situations relate to (a) the choice of Prime The Sardari Lal31 ruling was rightly overruled
Minister (Chief Minister) restricted though this by the Supreme Court since this ruling was
choice is by the paramount consideration that against the very concept of the Parliamentary
he should command a majority in the House; form of Government which does not allow the
(b) the dismissal of a Government which has ceremonial head of state to act independently
lost its majority in the House but refuses to quit of the Cabinet headed by the Prime Minister.
office; (c) the dissolution of the House where an The Sardari Lal ruling was truly a constitutional
appeal to the country is necessitous, although blunder that might have disturbed the
in this area the Head of State should avoid constitution system in the country.
getting involved in politics and must be advised
by his Prime Minister (Chief Minister) who will The author submits that the instant
eventually take the responsibility for the step. judgment is impeccably appropriate from the
We do not examine in detail the constitutional constitutional law point of view and it has
proprieties in these predicaments except to been delivered in accordance with the basic
utter the caution that even here the action spirit of the Constitution which has envisaged
must be compelled by the peril to democracy the Parliamentary form of Government in the
and the appeal to the House or to the country country which does not allow the head of
must become blatantly obligatory.30 state to exercise powers independently of the
Cabinet headed by the Prime Minister. The
The instant judgment of the Supreme judgment clearly lays down that even being
Court has rightly set the age-old controversy the constitutional head of the Government
regarding the constitutional position of the the President of India is not a figurehead or a
President of India at rest and held that the rubber stamp and in certain cases he can act
President of India is a constitutional head of independently of the advice of the Council of
the Union Government who has to act on the Ministers. But such situations are rare.
aid and advice of the Council of Ministers in
the exercise of his powers and functions and
the real powers are exercised by the Council 5.5 Sripati Ranjan judgment
of Ministers which is collectively responsible
to the Lok Sabha under Article 75(3) of the In Union of India v. Sripati Ranjan Biswas,32
Constitution. The Supreme Court also made it the respondent was dismissed from service by
clear that the President of India is not a glorified the Collector of Customs. He had preferred an
cipher or a rubber stamp. He can express his appeal to the President of India as provided
views freely to the Prime Minister under Article for in the service rules. The Minister of Finance
78 and can make difference in his own way. rejected his appeal without any reference to

31 Sardari Lal v. Union of India, AIR 1971 SC 1547.


30 Id. at 885. 32 (1975) 4 SCC 699.

197
the President. The question was whether the The President in our Constitution is a
Finance Minister could have himself decided constitutional head and is bound to act on the
the appeal or should the President have aid and advice of the Council of Ministers (Article
decided the matter personally because the 74). This was the position even before the
rule in question provided that the appeal lay to amendment of Article 74(1) of the Constitution
the President. Dismissing the contention of the by the 42nd Amendment (See Shamsher
respondent the Supreme Court held: Singh and Another v. State of Punjab). The
position has been made absolutely explicit
In the history of the entire background by the amendment of Article 74(1) by the
of the constitutional development of our Constitution 42nd Amendment which says
country, when the Constitution conclusively “there shall be a Council of Ministers with the
contemplates a Constitutional President it is Prime Minister at the head to aid and advise
not permissible nor is it even intended to invest the President who shall, in the exercise of his
upon the President a different role of a ruling functions, act in accordance with such advice.”
Monarch. A reference to the President under What was judicially interpreted even under the
any rule made under the Constitution must unamended Article 74(1) has now been given
need to be the President as the constitutional parliamentary recognition by the Constitutional
head, as envisaged in the Constitution, acting Amendment. There can, therefore, be no
with the aid and advice of the Council of doubt that the decision under Article 356 of the
Ministers.33 Constitution which is made by the President is
a decision of the Council of Ministers.35
Thus, in the instant case also, the principle
laid down in Samsher Singh’s case was The observations in the instant case are
extended to a quasi-judicial function as completely based on the Samsher Singh
well vested in the President by a statutory ruling36 and appear to be perfectly correct to
provision. The decisions taken by the Ministers the researcher as well. This judgment was
are deemed to be the President’s decisions. related to the application of Article 356 of the
Constitution by the President where a State
Government can be dismissed if it is not able
5.6 Rajasthan Assembly to run the administration in accordance with the
dissolution judgment constitutional provisions. The report of the failure
of the State Government is sent to the President
In State of Rajasthan v. Union of India,34 the by the Governor of the concerned State and in
Supreme Court observed: practice the decision to impose Article 356 is

35 Id at 670.
33 Id. at 702. 36 Samsher Singh v. State of Punjab, (1974) 2 SCC
34 (1977) 3 SCC 592. 831.

198
5.7 Maru Ram judgment
taken by the Council of Ministers. The President
approves the decision formally in his name. The In Maru Ram v. Union of India,37 speaking on
Court said that Article 356 is imposed on the behalf of a Constitution Bench of the Supreme
satisfaction of the Council of Ministers, and not Court Krishna Iyer J., observed:
on the personal satisfaction of the President.
The President is bound to act on the advice of The position is substantially the same
the Council of Ministers in respect of Article 356. regarding the President. It is not open either
The President can just once return the matter to the President or the Governor to take
to the Council of Ministers for its reconsideration independent decision or direct release or
but thereafter he is bound to act on the refuse release of any one of their own choice. It
reconsidered advice of the Council of Ministers. is fundamental to the Westminster system that
The President has no personal say power in the Cabinet rules and the Queen reigns. The
that matter. It is the Council of Ministers which President and the Governor, be they ever so
has to take a final call and not the President if high in textual terminology, are but functional
something goes wrong. The Council of Ministers euphemisms promptly acting on and only on
is collectively responsible to the Lok Sabha and the advice of the Council of Ministers save
not to the President. in a narrow area of power. So, even without
reference to Article 367(1) and Sections 3(8)
The author is of the view that the instant (b) and 3(60) (b) of the General Clauses Act,
judgment is fully based on the Samsher Singh 1897, that in the matter of exercise of the
judgment and has been crafted as per the powers under Articles 72 and 161, the two
real working of our Government system. It highest dignitaries in our constitutional scheme
agrees with the constitutional law point of act and must act not on their own judgment
view as the Council of Ministers headed by but in accordance with the aid and advice
the Prime Minister is the real driving vehicle of of the Ministers. Article 74, after the 42nd
the Government machinery and is responsible Amendment silences speculation and obligates
to the Parliament for all its omissions and compliance….. The constitutional conclusion is
commissions. In terms of use of Article 356 of that the Governor is but a shorthand expression
the Constitution, the satisfaction is always of for the State Government and the President is
the Council of Ministers. Personal satisfaction an abbreviation for the Central Government.38
of the President is completely alien to the
Parliamentary Government system prevailing In this case also Justice V. R. Krishna
in our country. The President can only convince Iyer reiterated his thesis propounded in the
the Council of Ministers by giving his/her Samsher Singh case39 and held that the
comments/remarks but ultimately the will of
37 (1981) 1 SCC 107.
the Council of Ministers shall prevail over the
38 Id. at 146,147.
President of India. 39 (1974) 2 SCC 831.

199
President or the Governor is the constitutional constitutional head and is bound to act on the
head of the Government. The judgment clearly aid and advice of the Council of Ministers. This
sets out that the President of India is bound was the position even before the amendment
to act as per the advice of the Council of of Clause (1) of Article 74 by the Constitution
Ministers when he decides the mercy petitions (42nd Amendment) Act 1976, but the position
under Article 72 of the Constitution. It is has been made absolutely explicit by the
significant to state that in practice the mercy amendment and Article 74 Clause (1) as
petitions are decided by the Home Minister amended now reads as under:
and the President of India is bound to accept
the Home Minister’s recommendation. The There shall be a Council of Ministers with the
President of India cannot allow mercy petition Prime Minister at the head to aid and advise
on his own discretion. He can only return the the President who shall, in the exercise of his
recommendation once to the Home Minister for functions act in accordance with such advice.
his reconsideration, but thereafter he is bound
to accept the reconsidered recommendation. What was judicially interpreted even under
Only one option is available to the President the unamended Article 74 Clause (1) has now
of India in case he does not agree with the been given Parliamentary recognition by the
advice, he can put that matter on hold for Constitutional Amendment.41
an indefinite period of time as no time limit is
prescribed in the Constitution during which he Like the previous judgment, this observation
has to act on the advice of the Ministers. It has is also based on the Samsher Singh ruling
been followed by some Presidents in the past and looks constitutionally correct to the
which is not considered as a good practice. researcher. The judgment was concerned
Thus, a Constitutional Amendment is required with the appointment of the Supreme Court
for a clear picture so that the litigations could and High Court Judges. In case of Judges’
be reduced. Therefore, the judgment is right appointment also, the President was bound to
from constitutional angle. act on the ministerial advice. He cannot take a
different view. Though, currently the situation
has changed in the Second Judges’ case42
5.8 S. P. Gupta judgment and the President of India is bound to accept
the recommendation of the Supreme Court
In S. P. Gupta v. Union of India40, the collegium headed by the Chief Justice when
Supreme Court held: he appoints the Supreme Court and High
Court Judges.
It is clear from the constitutional scheme
41 Id. at 227.
that under our Constitution the President is a
42 Supreme Court Advocates on Record Association v.
40 AIR 1982 SC 149. Union of India, (1993) 4 SCC 441.

200
5.9 Charan Singh appointment
as Prime Minister by observing that this was
judgment
covered under the discretionary power of the
In Harsharan Verma v. Charan Singh,43 the President. Even in Samsher Singh v. State
Supreme Court held: of Punjab47, Justice Krishna Iyer had clearly
observed that the President of India has a
We must, however, hasten to add that the discretionary power to appoint the Prime
High Court is right in its view that Shri Charan Minister. But when a political party gets full
Singh’s appointment as the Prime Minister majority in the Lok Sabha, no question of
could not be said to be conditional upon his Presidential discretion arises. The problem
seeking a mandate of the Lok Sabha. Our arises when the hung House comes into
Constitution knows no such hybrid thing as existence and the President has to identify the
a “Prime Minister subjected to a condition suitable person who can command the majority
of defeasance”. Conditions imposed by the support in the Lok Sabha. This situation has
President may create considerations of political been faced by some of the Presidents such as
morality or conventional propriety but not of Neelam Sanjiva Reddy, R. Venkataraman, Dr.
constitutional validity. The High Court is also Shankar Dayal Sharma and K. R. Narayanan.
right that it was not necessary for Shri Charan
Singh and his Ministers to take a fresh oath after
being called upon by the President to continue 5.10 R. K. Jain judgment
in office as a caretaker Government. Thus, the
continuation in office of Shri Charan Singh and In R. K. Jain v. Union of India,48 the Supreme
his Ministers was not unconstitutional.44 Court held:

In the instant case, the Supreme Court ….Article 74(1) as amended by Section 11 of
upheld the President’s decision for appointing the Constitution 42nd Amendment Act, 1976
Chaudhary Charan Singh as Prime Minister with effect from January 3, 1977 postulates
in July 1979 and observed that it was the that there shall be a Council of Ministers with
discretionary power of the President to appoint the Prime Minister as the head to aid and advise
the Prime Minister. Before this judgment, the President who shall, in the exercise of his
the Delhi High Court in Dinesh Chandra functions, act in accordance with such advice.
Pande v. Chaudhuri Charan Singh45 and the The proviso thereto added by Section 11 of the
Calcutta High Court in Madan Murari Verma Constitution 44th Amendment Act, 1978 which
v. Choudhuri Charan Singh46 had also upheld came into effect from June 20, 1979 envisages
the appointment of Chaudhary Charan Singh that ‘provided that the President may require

43 (1985) 1 SCC 162. the Council of Ministers to reconsider such


44 Id. at 162,163.
45 AIR 1980 Delhi 114. 47 (1974) 2 SCC 831.
46 AIR 1980 Cal. 95. 48 (1993) 4 SCC 119.

201
advice, either generally or otherwise, and the The instant judgment is also based on the
President shall act in accordance with the Samsher Singh ruling and is constitutionally
advice tendered after such reconsideration.” correct judgment. The judgment is self-
Clause (2) declares that the question whether explanatory and presents a clear picture of
any, and if so what, advice was tendered by the constitutional position of the President
Ministers to the President shall not be inquired specifying that the President of India is a
into in any Court.49 constitutional head of the Union Government
who is bound to act on the aid and advice
of the Council of Ministers in the exercise of
Further the Court added: his functions and powers. The business of
the Government of India is conducted by the
The President exercises his executive power Ministers empowered by the President under
under Article 74 (1) through the Council of Article 77(3) of the Constitution. The President
Ministers with the Prime Minister as its head who of India acts as a constitutional head, following
shall be collectively responsible to the House the aid and advice of the Council of Ministers
of People. The exercise of the power would headed by the Prime Minister in the exercise of
be as per the rules of business for convenient his constitutional powers and functions as per
transaction of the Government administration Article 74(1) of the Constitution.
made under Article 77(3), viz., the Government
of India (Transaction of Business) Rules, 1961
for short the ‘Business Rules’. The Prime 5.11 S. R. Bommai judgment
Minister shall be duty bound under Article 78
to communicate to the President all decisions The judgment of the Supreme Court in S.
of the Council of Ministers relating to the R. Bommai v. Union of India,51 is a landmark
administration of the affairs of the Union and decision, decided by a Constitution Bench of
proposals for legislation etc. The details whereof nine Judges, which has prevented the misuse
are not material. Article 77(1) prescribes that all of Article 356 of the Constitution up to a large
executive actions of the Government of India extent. It is well known that by the misuse
shall be expressed to be taken in the name of Article 356, so many State Governments
of the President and shall be authenticated were dismissed by the Central Government
in the manner specified in the Rules made by on political considerations from time to time
the President. The President issued business and the name of the President of India was
rules and has allocated diverse functions to the unnecessarily dragged into the controversy.
Council of Ministers, its committees and the In this case also the Supreme Court clearly
officers subordinate to them.50 observed that the President of India has to act
on the aid and advice of the Council of Ministers
49 Id. at 142.
50 Id. at 143. 51 (1994) 3 SCC 1.

202
headed by the Prime Minister in the exercise federalism in the country. It established that
of his powers and functions and he can once use of Article 356 of the Constitution is subject
send the advice of the Council of Ministers to judicial review. Previously people were
back to the Cabinet for its reconsideration confused about the term ‘President’s rule’ but
and thereafter he is bound to act on such this judgment has clearly held that Article 356
reconsidered advice. The Supreme Court of the Constitution is imposed in any State on
observed: the satisfaction of the Council of Ministers,
and not on the personal satisfaction of the
The President is clothed with several powers President. The President of India is merely a
and functions by the Constitution. It is not constitutional head of the Union Government
necessary to detail them to expect to say that who is bound to act on the aid and advice of
Article 356 is one of them. When Article 74 (1) the Council of Ministers in the exercise of his
speaks of the President acting “in the exercise functions including Article 356. The Samsher
of his functions”, it refers to those powers Singh ruling has again been endorsed in this
and functions. Besides the Constitution, judgment. The judgment is perfectly aligned
several other enactments too confer and towards the constitutional perspective and has
may hereinafter confer certain powers and been delivered as per the constitutional spirit
functions upon the President. They too will be and realities.
covered by Article 74(1). To wit, the President
shall exercise those powers and discharge
those functions only on the aid and advice of 5.12 H. D. Deve Gowda
the Council of Ministers with the Prime Minister judgment
at its head.52
In S. P. Anand v. H. D. Deve Gowda53, the
The instant ruling is a landmark one and Supreme Court held:
has brought out major changes in the Indian
constitutional system. Prior to this judgment, Now Article 74(1) envisages a Council of
the State Governments were treated just like the Ministers with the Prime Minister at the head
Footballs by the Central Government and Article to aid and advise the President, and the latter
356 was misused on political considerations is expected to act in accordance with such
on a large scale as and when the Central advice but if he has any reservations he may
Government desired to do so particularly require the Council of Ministers to reconsider
against the opposition led Governments. such advice. Thus, the President has to act in
This judgment has acted as a break on that accordance with the advice of the Council of
unfair constitutional practice and has brought Ministers as a body and not go by the advice of
out responsibility and has strengthened the any single individual. Only a person, who, the
52 Id. at 239. 53 (1996) 6 SCC 734.

203
President thinks, commands the confidence of the Supreme Court of India observed:
the Lok Sabha would be appointed the Prime
Minister who in turn would choose the other However, there is a marked distinction
Ministers. The Council of Ministers is made between the provisions of Articles 74 and 163
collectively responsible to the House of the of the Constitution. The provisions of Article 74
People.54 of the Constitution, are not pari materia with the
provisions of Article 163, as Article 74 provides
In the above-mentioned judgment, the that there shall be a Council of Ministers, with
Supreme Court held that a person who is not the Prime Minister at their head, to aid and
a member of either House of the Parliament advise the President, who shall, in the exercise
can also be appointed as Prime Minister by the of his functions, act in accordance with such
President of India for a period of six months advice as is rendered to him, provided that the
and during those six months that person will President may require the Council of Ministers
have to become the member of any House of to reconsider such advice, either generally
the Parliament. This ruling also confirms the or otherwise, and the President shall act in
discretionary power of the President of India accordance with the advice that is tendered,
to appoint the Prime Minister subject to the after such reconsideration. While Article
Parliamentary approval. This ruling strengthens 163 provides that there shall be a Council of
the concept of Parliamentary Government in Ministers with the Chief Minister at their head,
the country and declares that the President to aid and advise the Governor, in the exercise
of India is a constitutional head of the Union of his functions, an exception has been carved
Government and is bound to act on the aid out with respect to situations wherein, he
and advice of the Council of Ministers headed is by, or under this Constitution, required to
by the Prime Minister in the exercise of his perform certain functions by exercising his
powers and functions as per the mandate of own discretion.
Article 74(1) of the Constitution. The judgment
is quite sound from constitutional law point of In the instant case, the Supreme Court stated
view. that the text of Article 74 of the Constitution
does not provide any discretionary powers
to the President of India which is available
5.13 Gujarat Lokayukta to the Governors of the States under Article
judgment 163 of the Constitution. The above-mentioned
judgment is very important to understand the
In State of Gujarat and Another v. Hon’ble legal implications of the failure of Governor or
Mr. Justice R. A. Mehta (Retd) and others,55 the President for not following the ministerial
advice. By implication the verdict indicates that
54 Id. at 743.
55 Civil Appeal Nos. 8814-8815 of 2012, Supreme if the President of India ignores the advice of
Court, Para no. 28.
204
the Council of Ministers and takes any decision United Kingdom. But the Supreme Court has
contrary to such advice, the Government can also stated that the President of India is not
challenge the validity of the Presidential action a gloried cipher or a rubber stamp as Justice
in court of law as the exercise of executive Krishna Iyer also mentioned in his concurring
power by the President contrary to the judgment in the Samsher Singh’s case58 as
constitutional provisions is unconstitutional and discussed earlier. And in certain areas the
liable to be set aside.56 But there are authorities President of India can act on his own discretion.
contrary to this view too which provide that
no such challenge can ever be made against As per Samsher Singh ruling, in matters
the President on the advice tendered by the pertaining to appointment of the Prime Minister
Council of Ministers as per Article 74(2) of the in a hung House the President of India can act
Constitution.57 But it is difficult to accept the on his own discretion. If the Council of Ministers
latter view. If the President of India is allowed to loses majority support in the Lok Sabha and
bypass the advice of the Council of Ministers, does not leave office, the President of India
it will eliminate the Parliamentary Government can sack such Government. In dissolving Lok
system as established by the Founding Fathers Sabha also, the President of India can act
in the country and the President of India can on his own discretion. The President of India
emerge as a dictator. The President is not can also ask the Prime Minister to supply him
supposed to be the master of the Council of necessary information as per Article 78 of
Ministers. the Constitution on his own discretion. The
President of India can also grant sanction of
prosecution against the Prime Minister on his
6. Concluding remarks own discretion. The President of India can
ask the Council of Ministers to reconsider its
In view of the foregoing discussion of a advice once but he is bound to act on the
number of judicial pronouncements, it is reconsidered advice of the Cabinet. However,
submitted that in almost all the cases the no time limit is there in the Constitution during
Supreme Court of India has clearly observed which he has to act on such advice. President
that the President of India is a Constitutional Zail Singh exercised this option in Indian Post
head of the Union Government and the Office Bill matter in 1986. But the President is
real powers are exercised by the Council of not bound to act on unconstitutional advice of
Ministers headed by the Prime Minister as per the Council of Ministers.
the spirit and intendment of the concept of
responsible Parliamentary Government based In the abovementioned situation, the
on the Westminster model prevalent in the Supreme Court observes that the President
of India is generally bound to act on the
56 U. N. R. Rao v. Indira Gandhi, AIR 1971 SC 1002.
57 S. R. Bommai v. Union of India, (1994) 3 SCC 1. 58 (1974) 2 SCC 831.

205
advice of the Council of Ministers headed of the President. S. P. Gupta also follows
by the Prime Minister in the exercise of his Samsher Singh ruling. In Charan Singh case
powers and functions conferred upon him the Supreme Court observes that in the case
by the Constitution. The Ram Jawaya Kapur of appointment of Prime Minister the President
ruling clearly states that in terms of exercise of has discretion of own. R. K. Jain case and
executive powers the President is bound to act S. R. Bommai case are also based on the
on the advice of the elected Government. The reasoning of the Samsher Singh case. While
R. C. Cooper verdict points out that in terms of exercising his powers under Article 356 of
issuing the Ordinance under Article 123 of the the Constitution; the President of India has to
Constitution, the President of India is bound act on the advice of the Council of Ministers
to act on the satisfaction of the Council of headed by the Prime Minister. He can only
Ministers headed by the Prime Minister. The U. once send the recommendation back to the
N. R. Rao judgment does not leave any space Cabinet for its reconsideration. But thereafter
for the President of India to act independently of he is bound to act on the reconsidered advice
the advice of the Council of Ministers. It clearly of the Cabinet. H. D. Deve Gowda and Gujarat
holds that the President of India is always bound Lokayukta cases are also based on the well-
to have a Council of Ministers even if the Lok established legal reasoning of the Samsher
Sabha is dissolved. The verdict fully certifies Singh case.
that the Indian Government is a Parliamentary
form of Government. The Samsher Singh case In view of the above judicial approach, it is
is the finest authority on the issue. This ruling submitted that the judgments of the Supreme
clearly establishes that the President of India is Court constitute the law of the land as per
a constitutional head of the Union Government Article 141 of the Constitution and are to be
who is generally obliged to act on the aid and followed by all authorities, civil as well as judicial
advice of the Council of Ministers headed by under Article 144 of the Constitution. Now the
the Prime Minister in the exercise of his powers Samsher Singh’s case59 has clearly established
and functions. But this judgment also makes it that the President of India is a constitutional
clear that the President of India is not a rubber head of the Union Government who is bound
stamp and in some cases he can act on his to act on the aid and advice of the Council of
own discretion. The ruling has now become Ministers in the exercise of his functions. The
the law of the land. Sardari Lal case60 which had held otherwise
was rightly overruled by the Supreme Court in
Sripati Ranjan, Rajasthan Assembly and this case. Justice Krishna Iyer was surprised
Maru Ram cases are also based on the to know the views of some jurists who stated
legal reasoning of the Samsher Singh case. that the President had a good number of
These cases do not leave much space for
59 Ibid.
any doubt about the constitutional position 60 AIR 1971 SC 1547.

206
discretionary powers which he can exercise has been set at rest by this ruling by holding
without ministerial advice. In Samsher Singh that the President is a constitutional head of
case,61 Justice Krishna Iyer observed: the Union Government who has to exercise his
powers and functions on the aid and advice
It is surprising that extreme views have been of the Council of Ministers. In almost all the
propounded by responsible jurists on the law cases, the Supreme Court has confirmed with
of our Constitution in the strategic sector of the the Samsher Singh judgment. But this is a
President vis-à-vis his Cabinet and dangerous judge-made law and its future depends upon
portents must therefore be forestalled by an the Supreme Court itself.
authoritative statement of the constitutional
position by the apex court. If, in that process, In view of the above judicial response about
earlier ruling of this Court have to be overruled, the constitutional position of the President
we may not hesitate to do so. For, it is truer of India, it is submitted that the President of
to our tryst to be ultimately right, than to be India is a constitutional head of the Union
consistently wrong, where the constitutional Government who is generally bound to act on
destiny of a developing nation is at stake.62 the aid and advice of the Council of Ministers
headed by the Prime Minister in the exercise
But the Samsher Singh judgment63 also of his powers and functions as per the
makes it clear that though the President of mandate of Article 74(1) of the Constitution, as
India is a constitutional head of the Union amended by the 42nd and 44th Constitutional
Government, he is not a rubber stamp. In some Amendment Acts. The advice of the Council
areas the President of India can act on his own of Ministers is sent to the President of India
discretion, that is, independently of the advice through the Prime Minister and the President
of the Council of Ministers. Those areas are: has power under proviso to Article 74(1) of the
appointment of the Prime Minister, dismissal Constitution to return such advice once for
of the Government and dissolution of the Lok reconsideration but thereafter he is bound to
Sabha. As per Bagehot’s theory, the President accept the reconsidered advice of the Council of
is also entitled to “encourage, consult and Ministers. The Supreme Court has also upheld
warn” the Government and this is an effective this point in a number of cases. However, the
method through which he can counsel the President may delay the final decision of the
Government. By and large, now the Samsher Council of Ministers by putting that matter on
Singh judgment has become the law of the hold for indefinite period of time as no time limit
land on the matter relating to the constitutional has been prescribed under Article 74(1) of the
position of the President and the controversy Constitution during which the President has to
act on such advice. But it is a risky matter and it
61 (1974) 2 SCC 831.
all depends on the personality of the individual
62 Id. at 859.
63 Ibid. and the political environment prevailing at
207
that time. If the Council of Ministers holds a understand that the President is also bound
strong support of majority in the Lok Sabha, to accept any illegal or unconstitutional advice
the President may face serious consequences of the Council of Ministers. The President of
if he disturbs the decision-making process India is duty bound to preserve, protect and
of the Government as the Government may defend the Constitution and the law as per the
bring impeachment proceedings against him mandate of his oath taken under Article 60 of
for violating the Constitution. But it is not an the Constitution and if the President is satisfied
easy task and the President may also justify that the advice of the Council of Ministers
his action by taking the defence of his oath to goes against the provisions of the Constitution
preserve, protect and defend the Constitution and the law, he may refer that matter to the
and the law under Article 60 of the Constitution Council of Ministers for its reconsideration and
and it all depends on the House what view if the Council of Ministers does not accept his
it takes in such a situation. If the Parliament views, he may also ask the Council of Ministers
removes the President, the President may also to refer that matter to the Supreme Court for
challenge the validity of his impeachment in the taking its opinion under Article 143 of the
court of law and it depends on the court what Constitution and may act accordingly. In rare
view it takes. cases, when the President of India thinks that
the Council of Ministers is taking illegal and
Although, in a number of cases, the unconstitutional decisions and is not listening
Supreme Court has clearly observed that the to him, he may also dismiss such Council of
President of India is a constitutional head of Ministers, and may invite the opposition to
the Union Government and is bound to act on form the Government and if no political party
the aid and advice of the Council of Ministers is able to form the Government, the President
headed by the Prime Minister in the exercise of India may dissolve the Lok Sabha and order
of his powers and functions as per Article fresh general elections but it is rarest of rare
74(1) of the Constitution, it is very difficult to case.

*******

208
The Sentinel’s Toil
Gopal Sankaranarayanan*

Writing in the Illustrated Weekly in the autumn modest role. For a nation that has virtually
of 1974, the late Nani Palkhivala lamented been in perpetual crisis mode, lurching and
the state of the world’s largest functioning stumbling from one pitfall to the next, it is but
democracy in its twenty-eighth year. “We have inevitable that all institutions and individuals will
plentiful natural resources. We have vast skills be called to aid.
and talents and abundance of enterprise. We
have enough organizing capacity – otherwise In the same piece, Palkhivala also alludes
we could not have fed, clothed and sheltered to a forecast by an international agency about
ten million refugees. All that we need is the what the period 1980-1991 held in store for
emergence of dedicated men who can strike India. With remarkable prescience, the agency
a chord in the hearts of our trusting, grateful predicted that the decade to come would
millions and who can teach by the example of have the highest levels of general political
their lives the lessons which precept can never violence with greater riots, armed attacks and
impart”1, he said. assassinations than Africa and the Middle
East would experience in the same period.
While Palkhivala’s hope was for individuals This prophecy was faithfully fulfilled through
to be lodestars for the nation, little would he Operation Bluestar, Mrs. Gandhi’s killing, the
have imagined that the same institution of massacre of Kashmiri Pandits, the series of
which he was such an integral part would casualties in Punjab and Rajiv Gandhi’s death
play that important role. Over this four decade at the hands of the LTTE. We also had an
period, the Supreme Court has emerged as extraordinary helping of unrest with Moradabad
the recourse for all ills that befall the nation, (1980), Nellie (1983), Bhiwandi (1984), Anti-
at many times overwhelming an institution that Sikh riots (1984), Gujarat (1985), Meerut
was initially cast in what is perceived as a more (1987), Bhagalpur (1989), Hyderabad (1990)
and Mandal Commission (1990) culminating in

* Advocate, Supreme Court of India. Parts of this the Bombay massacres of 1992.
paper borrowed from an earlier publication by the
author entitled “Man Damn Us”, (2009) 9 SCC (J) 6.
1 Nani A. Palkhivala, “The Mess We are in”, The As challenge after challenge has been
Illustrated Weekly of India, August 11, 1974. thrown up for the nation, the courts have been
209
at the thick of it, sometimes by compulsion, but laid down in the Constitution that the judiciary
mostly by invitation. Their measures have been is most often called upon to play a part.
(for the most part) restrained, and informed by
a balance that has been struck between law Article 32, for example, guarantees any
and justice. It is therefore strange that their person the right to move the Supreme Court to
actions alone are constantly held up to scrutiny enforce the rights available in the Fundamental
by using phrases such as “judicial activism” Rights chapter. Read with Article 13, which
and “judicial overreach”. For an executive prohibits the ‘State’ from making any law
that alternates between being emboldened inconsistent with these assured rights, it is clear
by power or weakened by compromise, and that it is a virtual duty of the Supreme Court to
a legislature that is rarely troubled to debate ensure that the other two wings of Government
or deliberate, the judiciary stands as a stark do not encroach upon the Constitution’s basic
contrast, constantly reminding, occasionally undertaking to its subjects.3 This power (of
correcting. enforcing Part III rights) is also available to
the High Courts by way of Article 226, which
The genesis of the Court extends it “for any other purpose”. Articles 129
and 215 recognize that the Supreme Court
It would be apposite to reflect on where the and the High Courts are courts of record, and
Supreme Court commenced its journey, and grant them the power to punish for contempt
the station where it finds itself today. If we were without limitation. Article 142, which is a
to contemplate in a most conservative manner maverick provision, the likes of which would
the role that the Constitution itself envisaged
3 But what happens when the Supreme Court itself
for the Supreme Court, it would show us breaches Part III comprising the fundamental rights?
eight individuals appointed by the President The judgments in Naresh Shridhar Mirajkar v. State
of Maharashtra, (1966) 3 SCR 744, A.R.Antulay v.
to discharge the adjudicatory role laid out for R.S.Nayak, (1988) 2 SCC 602 and Rupa Ashok Hurra
v. Ashok Hurra, (2002) 4 SCC 388 would suggest that
them in the Constitution. Virtually no other the judiciary, not being ‘State’ for the purposes of Part
jurisdiction boasts of entire Chapters devoted III, cannot be guilty of violating fundamental rights. This
position could be questioned in light of the judgment
to the establishment and functions of the of the Supreme Court in Shaukat Hussain Guru v.
State (NCT) Delhi, decided on 15.04.2008. An earlier
courts2, but it is not in them that one will find the
discussion by this author concerning this anomaly
true extent of their power. It is where the limits may be found in (2008) PL (Con) July 17. Consider
also the decision of an international Arbitral Tribunal
of the executive (in a Parliamentary democracy, in White Industries Australia Ltd., v. The Republic of
thereby also denoting the legislature) have been India, rendered on 20.11.2011 which deemed the
Indian Republic responsible at international law for
the (in)action of its courts. Also contrast the Indian
2 In the Constitution of India, 1950, Chapter IV of approach with that of the United States, where the
Part V deals with the Supreme Court, Chapter V of Court considers judicial action as ‘state action’
Part VI deals with the High Courts and Chapter VI which, in a given case, would breach the guarantees
of Part VI deals with the Subordinate Courts. Apart of the Fourteenth Amendment. See particularly, the
from these, Article 348 deals with the language of the discussion in Shelley v. Kraemer, 334 US 1 (1948)
Courts, the Second Schedule deals with the salaries at 14-18 and Justice Douglas’ concurring opinion in
and emoluments of Judges and the Third Schedule Lombard v. State of Louisiana, 373 US 267 (1963) at
with the form of their oath of office. 278.
210
be hard to find4, allows the Court to pass any sine qua non of the constitutional structure.5”
order or make any judgment in the interests of
‘complete justice’. Finally, Article 141 ensures In interpreting this written Constitution,
that the law as declared by the apex court the Indian courts were not in any doubt as
would be the law for all courts across India. In to the duties cast upon them from the very
effect, a judgment in exercise of judicial review outset. In its inaugural year, the Supreme
would also have to be compulsorily followed Court was faced with a challenge mounted
by all other courts in the country as it would against the Preventive Detention Act, 1950
be laying down the law in consonance with the on the ground that the ‘procedure’ envisaged
Constitutional scheme, rectifying or annulling in Article 21 ought to be likened to the ‘due
any errors that would have been the result of process’ clause in the 5th Amendment to the
the legislative process. American Constitution. M.K.Nambyar, arguing
for the petitioner A.K.Gopalan6 contended
In the background of the Constitution itself, that procedural due process must necessarily
it seems a little strange that the question of be read into Article 21, and for that purpose
judicial review is moot in India. It is possible that submitted that Articles 19, 21 and 22 ought
academics and jurists have bodily imported to be read as part of a composite whole. The
the discourse from abroad without paying Supreme Court however took a narrow view
heed to the latent distinctions, but at the very of the provision, and rejected the submission
least, it must be accepted that both by virtue of of the petitioner, with one of the judges even
being written, and being so detailed, the Indian observing that the State was empowered,
Constitution explicitly empowers its courts to a through validly enacted law, to punish a convict
much greater degree than those in the United by boiling him in oil!7
States and England. In fact, it is in the context
of a written constitution that Schwartz has said The Court’s position has been described
as positivist and conservative8, and it could
“A constitution is naught but empty words if
5 Schwartz, Constitutional Law: A Textbook,
it cannot be enforced by the courts. It is judicial (Macmillan: 1972), 3.
6 A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
review that makes constitutional provisions
7 Ibid, Per Das J., at pp.28-39. This is an allusion to
more than mere maxims of political morality. In the poisoning of guests at the Bishop of Rochester’s
feast by his cook. An enraged Henry VIII decreed that
practice, there can be no constitution without
hanging was too kind, and so, the unfortunate chef
judicial review. It provides the only adequate was boiled to death, a punishment that prevailed for
that offence for 5 years.
safeguard that has been invented against
8 The late Chief Justice of India, Subba Rao criticized
unconstitutional legislation. It is, in truth, the the judgment by saying - “The preponderance of
view among the jurists is that it is wrongly decided.
4 Although both the procedural codes in India have It has in effect destroyed one of the greatest of the
provisions of a similar nature – Section 482 of the Fundamental Rights, i.e.,personal liberty.” Subba Rao,
Code of Criminal Procedure, 1973 and Section 151 of Some Constitutional Problems, (University of Bombay:
the Civil Procedure Code, 1908. 1970), 115.

211
be argued that the prevailing environment The Court further observed that it had the
might have tempered the view of the Bench. power to declare any law unconstitutional
India had recently attained independence, because the first obligation it had under the
and an eminent Constituent Assembly had oath taken by its judges was to the Constitution
given the nation its Constitution. The same itself. On this view, the Court was unanimous,
body, acting as the provisional Parliament although Justice Fazl Ali dissented on the
(the first Parliamentary elections were to be merits, observing that the true interpretation
held only in 1951) had enacted the legislation of Article 21 would mean “procedural due
impugned in Gopalan. It might have weighed process”, which ought to be just, fair and
with the Supreme Court, as it did in Sankari reasonable, apart from being merely validly
Prasad9 the following year, that if the same enacted. It would be nearly three decades
group of people were responsible for the before both Nambyar and Fazl Ali were
Constitution and the Preventive Detention Act, vindicated by the Supreme Court’s judgment
they would not have created such an anomaly in Maneka Gandhi11.
as had been presented by the petitioner.
Some would opine that a young nation, But lest one think that the Court fought shy
slowly coming to terms with its independence of exercising its full powers of judicial review,
would have found it very hard to deal with a one need only look at the interval between
fatal blow being dealt to one of its first legislative Gopalan and Sankari Prasad. The Court
enactments. hastened to protect the right under Article
19(1)(a) from action by the States. In the cases
These views would shortly be brought to of both Romesh Thappar12 and Brij Bhushan13,
nought by the Court’s conduct in cases of open it was swift to reject arguments that ‘security
derogation of the Constitution. But, a small of state’ in Article 19(2) included ‘public order’
warning had been apparent in the Gopalan and that restrictions based on the latter were
judgment itself, where it is noted: constitutionally valid. In Patna, the High Court
had also declared certain agrarian reform laws
“Statute law to be valid, must in all cases be in unconstitutional in Kameshwar v. State of
conformity with the constitutional requirements Bihar14. In Madras, the High Court quashed the
and it is for the judiciary to decide whether any communal G.O. and the same was sustained
enactment is constitutional or not”10. by the full bench of the Supreme Court15.

11 Maneka Gandhi v. Union of India, (1978) 1 SCC


248.
9 Sankari Prasad v. Union of India, AIR 1951 SC 458 11 AIR 1950 SC 124.
where the First Amendment to the Constitution was
12 AIR 1950 SC 129.
challenged vis-à-vis the insertion of Articles 31-A and
31-B. 13 AIR 1951 Pat 19.
10 Supra n.7 at Para 161. 15 The State of Madras v. Champakam Dorairajan,
AIR 1951 SC 226.

212
These three exercises of judicial power were The “undemocratic” Court
unexpected, not least by Prime Minister
Nehru, who, in order to neutralize them, The major criticism by those at odds with
prevailed upon the provisional Parliament to the Court is one of excess. The evolution of
pass the First Amendment to the Constitution. the “basic structure” norm in Kesavananda
While the amendments to Articles 15, 19 and Bharati16, the “due process” principle in
31 were meant to remove the basis of the Maneka17, the “reasonableness” doctrine in
judgements, they resulted in a seismic shift Royappa18, the relaxation of locus standi and
in the Constitution’s basic tenets of equality, the invention of Public Interest Litigation19 and
liberty and property respectively. the “collegium system” evolved in SCAORA20
and Special Reference21 were all deemed to
Nehru’s actions, though probably justified be beyond the judicial ken. As an unelected
at the time, showed a lack of imagination, Finance Minister ironically referred to it – “the
because with one fell blow, he created two tyranny of the unelected”. Such a view shows
mechanisms by which the supremacy of a complete ignorance of India’s constitutional
Parliament would be emphasized by those scheme.
less scrupulous than him – (a) the power of
the Constitutional Amendment to nullify the In a Constitutional democracy such as ours,
judgments of the highest court in the land, the actions of the Parliament can be granted
and (b) the Ninth Schedule, by which the very no pre-eminence when it is only one of the
power of judicial review of legislative action three wheels that allow the Government to
(one accorded by the Constitution itself) would function. When it is repeatedly emphasized
be excluded. In the years to come, these by critics that the judiciary is undemocratic
two instruments more than any other would because it is unelected, then that argument
be used by less responsible Governments to does grave harm to both the Constitution and
trammel the judiciary and muzzle the electorate. the democratic system it has spawned. The
Reacting to this, the Courts have, through 16 His Holiness Kesavananda Bharati v. State of
judicial innovation and creativity, attempted Kerala, (1973) 4 SCC 225
17 Supra n.11.
to restore its power of judicial review to the
18 E.P.Royappa v. State of Tamil Nadu, (1974) 4
position originally envisaged. It is this struggle SCC 3; Followed immediately thereafter in Chhaganlal
v. Greater Bombay Municipality, (1974) 2 SCC
by the judiciary to maintain the delicate balance 402, Maneka Gandhi, (1978) 1 SCC 248 , Ramana
between the institutions that has been viewed Dayaram Shetty v. International Airport Authority,
(1979) 3 SCC 489, Kasturi Lal v. State of J & K,
by critics as one crossing certain imaginary (1980) 4 SCC 1 and Ajay Hasia v. Khalid Mujib, (1981)
1 SCC 722, all from the pen of Bhagwati, J.
boundaries.
19 Hussainara Khatoon v. Home Secretary, State
of Bihar,(1980) 1 SCC 98 and S.P.Gupta v. Union of
India, 1981 Supp. (1) SCC 87
20 SCAORA v. Union of India, (1993) 4 SCC 441
21 Special Reference No.1 of 1998, (1998) 7 SCC
739
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presumption behind such a position is that one of several democratic mechanisms for
the people express their opinions through the distributing and legitimizing power, and so
process of elections, and it is only there that cannot support the assumption that legislatures
the true spirit of democracy can be found. are ipso facto more democratic and legitimate
This of course overlooks the fact that the than judiciaries.”23
very Constitution which was given by “We,
the People” allowed the very same unelected It must be contemplated that if one were to
judiciary to exercise its power of review to accept the simplistic argument that majority
strike down a legislative act. rule alone grants legitimacy, then we would hark
back to the fascist regimes of Hitler, Mussolini
In a lecture delivered by Justice H.R.Khanna, and Stalin when genocides and purges
he records the fact that Justice Robert Jackson, stood firm on the support it received from the
when replying to some criticism of the judiciary’s electorate. Instead, the true test for a civilized
role in the civil rights cases, stated that ordinarily, democracy in the 21st century would be as
legislation whose basis in economic wisdom is to how it treats the weak, the disenfranchised
uncertain, can be redressed by the process of and the unpopular, and whether these sections
the ballot box or the pressures of opinion. But, would have recourse against the oppression of
when the channels of opinion or of peaceful the State. As Walter Lippmann had said –
persuasion are corrupt or clogged, these
political correctives can no longer be relied on, “(Majority rule) may easily become an absurd
and the democratic system is threatened at tyranny if we regard it worshipfully, as though it
its most vital point. In that event, he says, the were more than a political divide. We have lost
Court by intervening restores the processes of all sense of its true meaning when we imagine
democratic government and does not disrupt that the opinion of fifty-one percent is in some
them.22 high fashion the true opinions of the whole
hundred percent, or indulge in the sophistry
An over-emphasis on any one limb of that the rule of the majority is based upon the
Government (in this case the legislature) would ultimate equality of man.”24
subordinate the Constitution to the Parliament,
which was clearly not the intention of the Happily, our Constitution has taken care of
framers. As Annabelle Lever puts it in her such eventualities in according the Courts the
response to Jeremy Waldron – power to decline to apply a statute that fails
to ensure the rights provided by it. This is why
“Universal adult suffrage, therefore, is but
23 Annabelle Lever, “Is Judicial Review
22 H.R.Khanna, Judiciary in India and Judicial Undemocratic?”, [2007] P.L.280 at p.288.
Process – Tagore Law Lectures, (Ajoy Law House: 24 C.Rossiter and J.Lare, eds., The Essential
1985), 38-39. Lippmann, (Random House: 1963), 13.

214
it is not only acceptable, but imperative and of the court, on Facebook and Twitter and
compulsory that the judiciary is unelected and gradually use the very same information
independent, and thereby not beholden to any when published as an annexure to a
quarter in discharging the duties of its high petition or complaint.
office.
c. To seek recusal of the judge concerned,
A note of concern while making inflammatory statements
about the judiciary or by misinforming the
While the Supreme Court has shown how judge concerned about the true factual
it can withstand the buffets from enthusiastic scenario.
legislators and public criticism, there remains
a matter of grave importance which has cast In my own experience, in just over the last
a cloud on the judiciary. In recent years, the 3 years, such situations have arisen with every
attack on the edifice has begun to come single presiding judge of the Supreme Court,
insidiously from within. As attempts to dilute providing salacious material to those who
the judicial role through legitimate means do not have the interests of the institution at
(legislative enactments and executive fiat) heart. While the Court has usually chosen to
have often been found wanting, the focus ignore these barbs, the state of affairs has now
has shifted to individual judges. Over the last reached a stage where further magnanimity
decade, especially with the advent of the would do harm to its very foundations. The
electronic media and social networks, certain regularity of such assaults has reached alarming
sections of the legal fraternity have taken it proportions, and a firm example needs to be
upon themselves to spread invective and set now. The fact that these assailants are a
canard against members of the judiciary they small cohort of recidivists ought to make the
find not to their liking, and to even seek judicial task easier to cleanse the system.
recourse on the basis of such propaganda.
Such action primarily has three significant As the light dims our years and our words
stages: fade on these pages, we must hope and pray
that this Court will continue to stand guard
a. To pore into the past conduct of a sitting against ruin and ravage. It is the solemn duty
judge and obtain half-baked anecdotal of every lawyer who is a part of this great
information, or to investigate the relatives institution to be like knights of yore, with lances
of the judge and conjure up conflicts of ready, to strike down the enemy. For it is here,
interest. at this hearth, that the people of India seek
justice.
b. To share this information in the corridors
*******
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