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VOLUME : 4 (2017)
LLOYDLAW
COLLEGE
L L O Y D
EDITORIAL ADVISORY BOARD CHAIRMAN
Mr. R. VenkataramaniSenior Advocate, Supreme Court of India
MEMBERSProf. (Dr.) S. Sivakumar, Member, Law Commission of India/ Professor,
Indian Law Institute/ HonoraryChairman, Academic Advisory Board, Lloyd Law College
Prof. (Dr.) Satish Chandra Shastri, Dean, College of Law & Governance, Mody University, Rajasthan
Prof. (Dr.) D.K. Sharma, Dean, Department of Law, Banaras Hindu University, Varanasi
Prof. (Dr.) Tara Prasad Sapkota, Dean, Faculty of Law, Tribhuvan University, Kathmandu, Nepal
Prof. (Dr.) Md. Rahmat Ullah, Dean, Faculty of Law, Dhaka University, Dhaka, Bangladesh
Prof. Jayadev Pati, Dean, SOA National Institute of Law, BhubaneshwarProf. V.R.C. Krishnaiah, Former Dean, Faculty of Law, Sri Venkateshwara
University, TirupathiProf. (Dr.) R.K. Chaubey, Head, Department of Law,
Allahabad UniversityDr. Manish Arora, Director, Universal Law Publishing Co., New Delhi
Prof. (Dr.) Manjula Batra, Professor, Faculty of Law, Jamia Millia Islamia, New Delhi
Prof. (Dr.) G. Kameswari Goda, Director (Research), Lloyd Law College Research Centre
EDITORIAL COMMITTEE
CHAIRMANDr. Md. Salim, Director, Lloyd Law College, Greater Noida
MEMBERSMr. Anup Kumar Varshney, Joint Secretary, Legislative Department,
Ministry of Law & Justice, New DelhiProf. (Dr.) V.T. Thamilmaran, Dean, Faculty of Law, University of Colombo,
Colombo, Sri LankaProf. S.S. Jaswal, Registrar, Himachal Pradesh National Law University,
ShimlaProf. (Dr.) Lisa P Lukose, Associate Professor, University School of Law &
Legal Studies, GGS Indraprastha UniversityMs. Meera Furtado, Commonwealth Moot Coordinator and Faculty, London
Metropolitan University, London, United Kingdom
LLOYDIANS
MANAGING EDITOR
Mr. Manohar Thairani
President, Lloyd Law College
EDITOR-IN- CHIEF
Mr. Akhilesh Kumar Khan
Deputy Director, Lloyd Law College
EDITORS
Dr. Kavitha Chalakkal
Assistant Director (Research), Lloyd Law College
Ms. Anjali Prabhakaran,
Faculty Member, Lloyd Law College
CO- EDITOR
Mr. Rahul Sinha Roy
Faculty Member, Lloyd Law College
STUDENT EDITORIAL COMMITTEE
STUDENT EDITORS
Mr. Kumar Deepraj� � Ms. Parul Malik
MEMBERS
Mr. Shahzeb Ahmed Mr. Chandrakant Tiwari
Ms. Shreya Arneja Mr. Harjodh Singh
Ms. Samar Parveen� Mr. Sequira Byron
Mr. Kshitij Ray� Ms. Richa Bias
INFORMATION AND DISCLAIMER
Cite this volume as 4 Lloydians (2017)
Lloydians: International Student Law Review is an
international annual, peer-reviewed Student Law Review of
Lloyd Law College. Papers for this journal are invited in the
form of long and short articles from law students of
recognised universities. The length prescribed for long
articles is more than 5,000 words and for short articles is
3,000- 4,000 words. The mode of citation and footnoting is as
followed in this issue. Papers already published elsewhere
will not be considered for publication in this Journal. The
theme selected for this issue of Lloydians is 'The Supreme
Court on constitutional Law'.
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Printed and published by Mr. Manohar Thairani on behalf of
Lloyd Law College.
© Lloyd Law College
CONTENTS
1. Cyber Crime : Atul Rana 05 The Immediate Threat and Legal Issue Involved in Counteract
2. The Perversion of Public Kunika Khera 24 Interest Litigation
3. Study on Censorship in India with special Niranjan E V 35 Reference to Religion and Obscenity Vishaka Nikkam
4. The Right to Education: Pritam Banerjee 49 A Case of Judicial Activism Rajat Halder
5. Aadhaar, A Catalyst to Shobhit Tiwari 61 Downfall of Privacy Faizan Mohd. Khan
6. Need of Right to Property to be Yash Tandon 80 reconsidered back as a Fundamental Right
7. Aadhaar, Right to Privacy and Aishwarya Agarwal 96 the Privacy Trade-offs: For Greater Benefits and National Interest
8. Sabarimala Controversy and Saumya Srivastava 106 Equality for Women: Question of Constitutionality of the Ban
9. Article 19-The Most Diverse Gopika. A. Aryad 118 Fundamental Right
10. Need for Extending the Harsh Vardhan Tiwari 128 Basic Structure Doctrine: Bharat Judicial Review of Election Disputes
11. The Constitution of India on Uniform Civil Code: Divyanshu Chaudhary 143 Looking Beyond the Interested Regimes
12. Supreme Court of India and its Shivansh Shukla 162 Constitutional Interpretations: Akrity Aishwarya The Journey So Far (1950-2017)
CYBER CRIME: THE IMMEDIATE THREAT AND
LEGAL ISSUES INVOLVED IN COUNTERACT *Atul Ratna
Abstract
With the evolution of computer age in 1970's and thereafter the advent of internet in 1990's, the whole world has experienced the revolution. This revolution includes the establishment of global network for computers, advanced system of technologies and interconnection between technologies, organizations and individuals. But at the same time, it paved the way for the commission of many crimes. The peculiarity of these crimes was that it can be committed by offenders without his physical presence at the place wherein the offence is committed. Sometimes, it may become very difficult to even trace the actual crime and the place of commission. This paper, in its limited scope, deals mainly with the legal issues involved in countering the cyber crime. The authors begin by analyzing the essence of law to address any crime followed by the peculiarity of cybercrime and present regulations for it. The paper continues by dealing with the critical issues in countering cyber crime i.e, jurisdictional, enforceability and procedural, as briefly as possible. Further, the 'lex loci delicit' rule within internet jurisdiction and the barriers to successful investigation have also been covered in this paper. Finally, authors have critically analyzed all the legal issues and then suggested the ways to address these crimes more quickly successfully.
I Introduction
THE OLD proverb says that “criminal law is the best when it 1criminalizes the least”. It has the same purpose as any other body of law
and aims to regulate the conduct of individuals in their interpersonal
relations and in their relation with society. To counter crimes and to
achieve justice, become the true objective of the criminal law. The birth
and evolution of courts brought with it the notion of justice and a fair deal.
From the days of Manu to the present age of the internet, behavior which
is harmful to the society at large has not been tolerated and has been dealt
strictly. Howsoever, the job of the investigation was never simple. Much
before an accused is proved as criminal, an entire gamut of law throws a
security wall around him so that his trial meets the standard of equity and
* 5th year student, B.A. LL.B Central University of South Bihar. 1 Cherif Bassiouni, Substantive Criminal Law (Thomas Publishers, United States of America, 1978).
the ends of justice. Thorniest issues of jurisdiction and evidence
sometimes lead many investigations to be left at its trial stage.
Evolution of the “computer age”, during 1970's, led to the
establishment of a global network of millions of computers connected
with one another. Today, internet has become part and parcel of human
life. It is regarded as a complex system of technologies and
interconnection between technologies, organizations and individuals.
The internet world is borderless having no relevance to geographical
boundaries and distances. It also permits immense privacy to its netizens.
Whether it is electronic communication through email, or online chat, or
buying and selling of goods through auction websites, or publishing any
document or music or videos, all these can be done with utmost secrecy
and privacy. Moreover, data or information is so volatile, as it can be
easily erased, modified, moved or transmitted and concealed through
encryption techniques.
II Cyber crime: An advanced offence
The world of internet has provided a wide area for the commission of
many crimes. These crimes are termed as “cyber crimes”, are distinct
from other crimes in many ways. It takes nature from the internet and
cyberspace; moreover, the privacy provided by the internet makes these
criminals almost invisible at the time when crimes are committed.
Physical presence at the bank was required, to rob a bank in the pre-
internet era, however, with electronic banking which is easily accessible
through the internet, physical presence is not necessary to commit the
robbery in this digital age. It can be said to be technology-based crimes, in
which technology is the weapon as well as the target at the victim's end,
and these weapons are easily and quite freely available on the internet
itself. For committing most of these crimes including hacking, phishing,
data theft, identity theft etc., a deep understanding of computers and the
internet is required and these criminals are technocrats who understand
the intricacies of information technology.
With the growing invasion of information technology in our lives,
6 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
the injury and losses caused by cyber crimes are of a huge magnitude.
Today, even the critical systems such as airports, defense and power are
run through information technology. Cyber crimes make these critical
systems vulnerable. Hacking into these and misappropriation of funds
through phishing can cause huge losses. Another peculiar characteristic
of cyber crimes is that, they are organized crimes. A few years back,
online lottery and a 'generous' foreigner leaving a huge fortune in his will
in favor of victims were the typical inducements to defraud vulnerable
people into paying nominal 'administrative' charges to scamsters, for
winning the generosity. Thousands of people were cheated through such
fraudulent 'get-rich-quick' schemes that allegedly originated from 2Nigeria.
For cyber crimes, 2007 can be said to be a landmark year in the
history of the internet, the year in which cyber crimes became as
organized as legitimate and lawful businesses. Cyber criminals adopted
innovative strategies to induce and trap the Internet users into craftily
designed schemes that were more sneaky and erudite than ever before. It
has been observed that cyber criminals are now following the footsteps of
lawful businesses, by advertising themselves on popular websites and
steal data of unsuspecting internet users. With the growth of computer
users using firewalls and other security software, cyber criminals have
found ways to induce internet users to access and view video content on a
website, to find security vulnerability on the user's computers and thereby
assume control over them.
Malicious video clippings were posted on popular websites using
the cover-up of advertisements. Criminal hackers timed their attacks with
major events. For instance, due to the heavy rush of online shopping,
these criminal tried to install their cyber weapons into the personal
computers of visitors to their sites. It was also the year for dangerous
viruses to inflict personal computers. Also called the “storm worm”, this
virus was mounted on videos showing violent storms on the European
2 Vivek Sood, Cyber Crime, Electronic Evidence & Investigation: Legal Issues 102 (Nabhi Publications, New Delhi, 2009).
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 7
coast, which invited the curiosity of millions of users who then became
victims to cyber criminals assuming control over their personal
computers. Cyber fraud through “phishing” i.e., inducing an internet user
to part with important data through impersonation, caused an estimated
loss of $3.2 billion to U.S. based consumers.
These days, cyber fraudsters are masquerading as top-notch multi
national corporations offering millions for being a customer or offering 3truckloads of cash or reward a person on their anniversary. The modus
operandi of these fraudulent is to masquerade and impersonate as the
brands one trusts most including banks. The internet is also serving as a 4
market for crimes such as poaching wildlife. Traditional crimes such as
extortion and criminal intimidation have also found the internet as their
platform. The recent incident of Anoushka Shankar, daughter of
legendary sitar player Pandit Ravi Shankar, being blackmailed by the
accused Junaid Ahmed Khan, who had allegedly hacked into Shankar's e-
mail account and obtained certain photographs of her that he was using to 5blackmail her, shows the mixing of traditional and cyber crimes.
III Present regulations for cyber crimes
Due to their peculiar nature, cyber crime investigation is technical
and it is difficult to collect direct evidence. At the same time, there are
devious technological ways to evade the investigative tools of
identification. These crimes are puffed up crimes, criminal trespass into a
computer system has been called “hacking”. The growth of information
technology has not only led to the growth of cyber crimes which are
undoubtedly a threat, but also the hype of the brand “cyber crimes”. The
hype has led to draconian laws, the severe response from law
enforcement agencies, and even the judiciary when it comes to dealing
with cyber crime cases. Severe social censure and stigma is attached to
cyber crimes. Due to the hype surrounding cyber crimes, new laws have
3 “Mega Millions in Jackpot- A Possibility” The Economic Times, Oct. 19, 2009. 4 “Poaching from Veerappan's Forest to the Net” Hindustan Times, Sept. 20, 2009.5 “Anoushka Shankar, Cyber Crime, Blackmail Case” Hindustan Times, Nov. 21, 2009.
8 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
been legislated to address issues like cyber terrorism. Whenever a cyber
crime is committed, it is projected as if the world has been rocked.
To achieve the purpose of criminal law and to check the behaviour of
the individual online, traditional laws have geared up to some extent to
suit the changing requirements of the internet age. Moreover, new
technology specific laws are coming up in more advanced societies to
meet the changing legal needs. The internet boom has affected the
criminal network in two ways:-
i. It has expanded the horizons of criminal activity giving it a global
arena; and
ii. It has empowered the no deviant and hitherto inactive criminal to 6take up new criminal activities which are mainly online.
Some of the cyber crimes like hacking, obscene electronic material,
online stalking and a few others have been brought within legal
entrenchment, but many others still escape regulation because of their
esoteric nature. The harmful behaviour online cannot be at once termed
as crime and hence, there are certain infractions which are also harmful 7and thus, need legal regulation.
The European Commission's Action Plan promoting the safe use of
the internet, 1997 was one of the earliest pieces of legislation which
recognises the need for a multi-layered and multi-juridical approach to
the regulation of internet content's. Quite recently, the Budapest
Convention on Cyber crime 2001 considered the most systematic
approach towards regulating harmful and criminal activities in
cyberspace. The European Commission aims at approximating
substantive law in the area of high-tech crime where it was considered the
point that with common definitions, incriminations and sanctions, high-
tech crimes could be successfully regulated.
6 Ken Pease, Crime Features and Foresight: Challenging Criminal Behavior in the Information Age (University College Press, London). 7 nd Talat Fatima, Cyber Crimes 336 (Eastern Book Company, New Delhi, 2 edn., 2016).
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 9
Four areas were focused upon:
i. Offences against the confidentiality and integrity of computer data
and system;
ii. Computer-related offences;
iii. Content-related offences; and
8iv. Offences related to infringements of copyright and related rights.
Need for a legislation to regulate electronic activities is as important
as the need of a civilized society to have law. Though a school of thought
believes that cyberspace should be left ungoverned, yet it is not
acceptable to a civilized society as that will lead us to disastrous end
where cyberspace shall turn into veritable legal Siberia where greed,
gambling, pornography and sex will reign supreme. Today, technology
has surpassed law and it has emerged as the shaping force of law. The
crime is committed in virtual surroundings while its effect is found in the
real world. There comes biggest challenge as there are crimes but no laws
to punish them and no suitable courts to try them.
III Issues in countering cyber crime
Jurisdictional issues
It is the worst casualty of the technological spree, especially the
territorial aspect of it, has remained a complex issue in transnational and 9organised crimes. By their very nature, the majority of internet crimes,
whether cyber stalking, unauthorized access, spamming or any other type
are done remotely, very often from a different state or country.
Judicial jurisdiction can be defined as, “the scope of the court's
power to examine and determine the acts, interpret and apply laws, make
orders and declare judgments. Geographic area, the type of parties who
appear, the type of relief that can be sought, and the point to be decided
8 Supra note 7.9 F. Lawrence Street and Mark P. Grant Law of the Internet (Lexis Nexis, New Delhi, 2004).
10 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
10may limit jurisdiction.” The concept of judicial jurisdiction of a court
emanates from the sovereignty theory and territorial theory of state.
Under this classic formulation, each state is supreme and has
unquestionable authority within its geographical limits. It is considered
as a direct attack on a state's sovereignty if a judicial process of a foreign 11state is exercised on its territory.
In the pre-internet period, personal jurisdiction was understood in
terms of territoriality. Both civil and criminal justice systems are 12
governed by the fundamental rule of jurisdiction. So powerful is the rule
that a wrong jurisdiction nullifies the most equitable verdict. Interaction
among different societies, be it on a commercial level, contractual level
or a social level, is as old as the man himself. Criminal link between
different communities or countries, though on individual level, is also a
part of it. This interaction gives rise to several legal complexities when it
comes to dispute resolution, settlement of rights or punishing a criminal,
as legal provisions of various societies are varied if not opposed to each
other. It was all about the real world, where boundaries are well
demarcated and laws are defined and jurisdictional issues are resolved by
various principles propounded for the purpose.
Internet jurisdiction: “lex loci delicti” rule.
The internet has changed the lex loci delicti rule. When one is online,
one is almost everywhere. While jurisdiction in erstwhile interpretation-
spelled limitation of some sort, be it subject-matter related or territorial,
in the internet age it means worldwide. Court jurisdiction over a party has
most often been determined by the presence of the defendant in the state
where the court sits. However, courts are now being called upon to
adjudicate jurisdictional disputes arising out of the internet
communications in which the parties have little physical or geographic 13connection with each other or the jurisdiction. A website stored on an
10 Nygh PE & Butt P (Eds.) Butterworth's Australian Legal Dictionary.11 Pennoyer v. Neff, 95 US 714, 723-24(1877).12 E.P. Hetchel, “The Physical Presence Basis of Personal Jurisdiction Ten Years after Shaffer v. Heitner”, 433 US 186.13 Supra note 9.
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 11
internet, email sent through mass “mailing list” transmissions can reach
people in many diverse jurisdictions even though the transmitting party
did not specifically know or intend that someone from that jurisdiction
would become involved.
Uncertainty regarding the proper jurisdiction looms large on the
internet surroundings as the disputable conduct is transmitted through
myriad jurisdictions, home and foreign and it was the decision of the
plaintiff to download the information into the forum jurisdiction. The
consequent results are that the defendant or the accused is tried under
laws which are not applicable to him; often the defendant faces local bias.
Courts all around the world are showing an assertive attitude to extend
their powers beyond physical boundaries in order to help local parties.
Current court service of process rules allowed service via personal 14
service, regular mail and fax or in such manner as the court may direct. A
single act on the net is the work play of several participants, as there are
website owners, the online intermediaries, the host, the author or creator
of a piece of writing or painter, etc., the corporate, the end-user and so on.
Hence, a single infraction or wrong may involve all or some of these
parties and again as the nature of the internet goes, it is quite possible that
all of these come from various countries and various jurisdictions. In
such a case, even if one applies the traditional principles of jurisdiction,
some of these may fall in different jurisdictions by virtue of subject
matter jurisdiction and some may fall under yet another jurisdiction due
to personal jurisdiction and yet some of the participants may remain
uncovered by these principles. This leads to the birth of a law of
cyberspace based on private contracting on a global basis and enforced
by a combination of the system operators.
14 Supra note 7 at 343.
12 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
Traditional theories of jurisdiction are inapplicable to the internet 15due to the following reasons:
i. Material posted on the internet has worldwide audience;
ii. It is easy to move a website from one territory to another;
iii. A website can be hosted on one area, but directed at users in another
geographic location;
iv. Parts of a website may be hosted in one area, while other parts of the
website are hosted in another location; and
v. It is not always possible to determine where a website or user is
located.
Moreover, the advent of the internet overturned the century-old
established theories of jurisdiction which were deeply rooted in the
territorial and physical concept. While the internet absolutely negates
tangibility and terrestrial forms; applicability of laws of the physical
world are bound to face unprecedented legal hardships.
Inter-sovereign conflict, extension of laws of one state to another has
been an unimaginable concept unless it is backed by some treaty between
the two states. For the internet environment, this is the first requirement
as the borderless world knows no such established norms. The conflict
thus arises.
Most of the traditional theories of jurisdiction are over inclusive in
relation to the internet because they allow for the almost unlimited 16
exercise of judicial jurisdiction. The traditional view rests on the
concept that every sovereign state has unquestionable authority within its
geographical limits but when a website is created, the server is physically
located within the boundaries of the state concerned. While such state, as
according to traditional notions, has legitimate control over its subjects
and over the physical infrastructure of the internet, the particular web
page being visible in any part of the globe, all the states of the planet may
15 Supra note 11. 16 Adria Allen, “Internet Jurisdiction Today” 2269 J Int'l L & Bus (2001).
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 13
have applying the same traditional notions, equal authority and interest.
Another dimension of the traditional theories is that it advocates the
limits of a state's authority within its territorial boundaries. It shuns the
idea of crossing these boundaries. In the internet surroundings, if a
dispute arises, where the plaintiff and defendant are from two different
jurisdictions then the concerned states are forbidden to cross the limits.
Thus, the under inclusiveness of traditional concepts is revealed because
the states that want to regulate internet activities cannot effectively
enforce their laws against purveyors of harmful material through the 17
internet who are located outside their territorial borders.
Enforceability issues
Another issue concerning the internet is the enforceability of legal
provisions and enforcement of rights of individuals and nations in the
transient regime. The potency of a law is manifested in its enforceability.
The distinction between applicability and enforceability is fundamental 18
to the future development of internet law. It is easy to formulate laws on
the internet related issues, yet it is a herculean task to implement it. Thus,
the enforceability of law depends, much more than the courts, on its
normative force. The common man obeys law not because he is afraid to
face litigation but because 'there is a want to act lawfully'.
Thus, in the internet environment, the normative force of law is still
lacking. In fact, the cyber fraternity shows complete disregard to law
either because they are totally unaware of the law provisions or they have
easier ways to escape the noose. As observed by Chris Reed, the problem
of enforceability arises mainly due to multiplicity of jurisdictions as each
nation has a right to be emphatic in enforcing and implementing its own
laws. The courts, mainly in the area of criminal offences, find themselves
helpless due to lack of jurisdiction over a particular person.
17 Supra note 16. 18 nd Chris Reed, Internet Law: Text and Materials 292 (Universal Law Publishing, 2 edn., 2004).
14 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
Procedural issues: Barriers to successful investigation
Everywhere, everything and everyone is changing to electronics.
Invasion of Internet is on and being at the core of everything, it is
reshaping the world and rewriting the standards. It is, in fact, 19
reorganizing every way we live in. Modus operandi or the manner of
committing crime has changed to intangibles and so should the manner to
investigate it. Law enforcement officials throughout the world are
severely handicapped in tackling the new wave of cyber crimes. The
biggest impediment they face is total anonymity which the internet 20
provides to an intelligent hacker. It has become a herculean task with an
amalgamation of legal, technical and operational challenges being faced
by the investigators.
The various steps which are followed in the investigating process
include ascertaining the facts, identifying the criminal and his arrest,
securing evidence through search and seizure and presentation of
evidence in the court. These are the usual steps followed in investigating
real crimes but when it comes to cyber crimes, the job becomes a
mammoth one as the most peculiar feature of cyber crimes and the
activities related thereto is its intangibility and transience nature. It being
a disjointed venture, the investigation of cyber crimes suffers from some
practical and logistic impediments. The law-enforcers are required to
have contacts with their counterparts on the other side of the globe at
inconvenient times. The crucial legal documents are required to be
translated which becomes a cumbersome job. Moreover, witnesses from
non-English speaking countries need interpreters which places extra
financial burden on the state and also slows down the entire justice
process. Some countries do not show much enthusiasm in extending
investigatory cooperation.
As the crimes of the digital age involve geographical miles and
several wrongdoers, the biggest challenge before the law enforcers is to
19 L.C Amarnathan, “Cyber Crimes: Prevention and Control Strategies” CBI Bulletin 4 (March, 2002).20 S.C. Agarwal, “Cyber Crime: Prevention and Investigation” IPJ 80 (2002).
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 15
identify the infringer which is not easy. Someone e-mailing infringing
material or posting to a USENET newsgroup may do so from behind an
anonymous remailer, which offers the service of stripping identifying
material from e-mails and passing them on. Again, the person with the
account may be using a false e-mail identity, and even masquerading
behind a false internet protocol address commonly known as spoofing.
Often, a genuine internet protocol address helps in identifying the
computer but it is usually only partial as it may be helpful in only showing
that the sender was a subscriber to a particular commercial ISP. Where the
infringing material is held on a more permanent internet resource such
web page, or ftp site, it becomes difficult to identify the person who puts
up some material on the resource.
Collection of evidence requires the technical and investigative skills
of the law enforcement agencies. In cyber crime investigations, the entire
process consists broadly of first detecting the origin and route of the
messages from the criminal to the victim's system; then trapping or
acquiring the messages of interest; accessing the content of the messages;
and finally to attribute the message origin to a particular legal person. The
most controversial part of any investigation process is the search and
seizure of incriminating objects and which always clashes with the
privacy and other valuable rights of the defendant.
Internet evidence: Issues involved
Long before computers became a household appliance, telephone
companies and banks were using them to record, process and report
information that their businesses required. But today computers are no
longer the exclusive appliance of commercial domains rather common
man's need which is used to cover mines and mines of information.
People are accepting with thrill, the realization of the fact that how their
computers, computer disks, computer memory, data compilations, e-mail
messages sent and received, and all backup computer files could be made
use to extract evidence for a successful prosecution.
The internet has given to the legal world a dichotomy as with the
16 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
increase in data collection, wanted or unwanted knowledge of some
event is gathered. In fact production of such information in criminal
courts has given rise to evidential problems. To make computer evidence
more acceptable in law courts, there have been concerted efforts to
legislate on the subject, yet these have so far proved to be insufficient to
deal with this problem of information technology criminal law. Not only
that immense amount of data is stored but at the same time the new
challenge is that it is deleted with as equal ease as it is gathered with.
Thus, one has also to be cautious about digital evidence cover-ups.
Investigators are troubled by the fact that a user, with current
technologies can quickly delete long lists of relevant information with
little evidence of the event. Encryption of files by users and their claim
that they do not remember their password” are yet other problems which
make the path of investigation and prosecution all the more challenging.
Computer evidence being transient and volatile in by nature raises
many questions before it can be presented in a criminal proceeding as
evidence. On the basis of the methodology adopted in extraction of the
evidence, the computer evidence can be divided into the following three
categories:
1. Real evidence: It is the evidence created by calculations or analysis
generated by the computer itself through running software and the
receipt of information from other devices such as built-in-clocks and
remote sensors.
2. Hearsay evidence: It is some data is fed by human hand into the
computer system and later the computer produces it on the basis of
some command given to it then the kind of information produced is
hearsay evidence.
3. Derived evidence: It is a combination of real and hearsay evidence to
form a composite record and which is also treated as hearsay
evidence. Daily balance column of a bank statement is an example
of this kind of evidence.
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 17
So long, courts have been relying on evidence which is physical in
form and which is visible and seen by all. Before computer evidence is
appreciated as proof in law proceedings, it has to pass through certain
authentication tests and also it is tested on the basis of established rules of
evidence which are traditionally applied on physical types of evidence.
The Information Technology Act, 2000 has added a new section 65-B to
the Evidence Act regarding admissibility of electronic records which
reads thus,
Section 65-B: - Admissibility of electronic records.
Notwithstanding anything contained in this Act, any
information contained in an electronic record which is
printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer shall be deemed to
be also a document, if the conditions mentioned in this
section are satisfied in relation to the information and
computer in question and shall be admissible in any
proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any
fact stated therein of which direct evidence would be
admissible.
This amendment will help the prosecution and the defence where the
evidence produced is electronic in nature. The amendment has been done
to include "electronic record" in the connotation of the term "evidence".
The cumulative effect of section 65-B, is that certain computer outputs of
the original electronic record, are now made admissible as evidence
without proof or production of the original record. Thus, the matter on
computer printouts and floppy disks and compact discs becomes
admissible as evidence.
To prove the content of writing, recording or photograph, the
original writing, recording or photograph is required, when it comes to
electronic documents, the term "original" has an expansive meaning.
When someone creates a document on a computer hard drive, such data
18 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
on hard drive can be produced in court with the help of a monitor. Fed R.
Evid Ioar clarifies that if data are stored in a computer or similar device,
any printout or other output readable by sight, shown to reflect the data
accurately, is an original. Until and unless a genuine question is raised as
to the authenticity of a duplicate, duplicate is admissible to the same
extent as an original.
The best evidence rule is based on the difference between primary
and secondary evidence, secondary evidence is allowed only if there is a
strong reason to believe that the original or the primary evidence is
absent. Thus, while presenting evidence in the court, "original ' is
regarded as the best evidence though there may be circumstances when
duplicate may also be admissible. The digital boom has changed the
terminology or its impact to a greater length. Technically speaking, in
computer world, nothing exists in the name of "original" as the original
language of the computer is not words or sentences but a technical
expression of bits and bytes, of ones and zeroes translation into a readable
language, whether on the monitor or in the form of a printout is, strictly
speaking only "copy”.
In traditional crimes, a gun or a pistol, a letter or a weapon, once
seized, keeps the exhibit secured in one place and unless of a perishable
nature, shall remain so for months, may be for years. The work of the
investigator is thus simplified and limited to sealing the seized object.
Collection of digital evidence as well as its preservation, both are
challenging. Apart from careful manual handling, the job requires
knowledge on technical lines which is much more important than the
physical aspect. The investigators are also troubled by the use of digital
cover-ups and encryption techniques to either render the data useless or
totally inaccessible. The owner of the disk can conveniently claim to have
forgotten the password. Deletion of matter is another risk which is faced
by the investigators, it leaves the investigator helpless. The temporary
and volatile nature of postings on the net, the erratic nature of websites
and the short-lived online data often raises complex legal issues
regarding the rights and liabilities of parties in the law courts.
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 19
Time factor plays a crucial role in chasing the criminal in the virtual
world. The sooner the investigator gets in touch with the suspected place
of data, be it a website or a personal computer, the richer is the evidence
collected. To gather the digital evidence so that it is well appreciated by
the law courts and benefit the parties, one has to understand the
temperament of the internet. One more tactic which helps the defendant
to escape legal proceedings is to ask the internet community to mirror
(copy) its sites. Multiplicity of network of activities provides an option to
the defendant to have multiple sites spreading over multiple jurisdictions
and leaving the investigators guessing about the original site or to remain
within their limits due to jurisdictional problems thus, giving the
infringer a cause to be happy.
Preserving the digital evidence collection and storage of physical
evidence is the job of a layman with little effort required to complete the
work. The mammoth amount of data in a system, the perishable nature of
the evidence, its technicalities and to present it in the form of evidence in
law courts make the job of an investigator a complex one. Thus, to avoid
all this, it is advisable to take certain precautions beforehand to preserve
the data which is to be adduced as evidence.
Proper training of the investigator is required in maintaining the
identity and cogency of digital evidence. The technological boom has
disturbed the legal ambience; anonymity and ubiquity rule the Internet
environment. During its initial days, the internet was welcomed as an
engineering marvel though, today its popularity among the criminal
fraternity has send tremors across the legal world. The hardships of an
ancient legal society as confronted with the blues of the information
society are being surfaced and hard to quantify at the moment. A plethora
of legal issues weaken the power of law; the concept of legal frontiers
commonly known as "jurisdiction" is being transformed by the planet-
wide extension of human activity; privacy concerns mar the
investigatory efforts; evidential challenges are responsible for the
latency in cyber crime reporting and a unified effort to thwart the
onslaught is being carried on war footing.
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IV Cyber security laws in other states
There are media reports that Russia and China are concluding a
cyber security treaty. The reported agreement would be the latest addition
to the increasingly complex landscape of international agreements
related to various aspects of cyber security—an area those in recent
months has also added an African Union Treaty and a NATO declaration.
The long-term effect of the bilateral and regional agreements is unclear:
they could pave the way for broader multilateral treaties or less formal
agreements, or they could entrench opposing views and thereby make
broad international agreements more difficult. The most likely outcome
may be somewhere in the middle. The details of the Russia-China treaty
are sketchy. Media reports indicate that the treaty would allow Russia and
China to develop “joint projects and conduct joint cyber security
operations” and to cooperate on “information security.” “Information
security” typically refers not just to the security of systems and networks,
which is what the United States and other countries mean in using the
term “cyber security,” but also work on regulation of information
content. For example, a Shanghai Cooperation Organization agreement
on “Cooperation in the Field of Information Security,” signed by China,
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan in 2008,
lists as a major international information security threat the
“[d]issemination of information harmful to the socio-political and
socioeconomic systems, spiritual, moral and cultural environments of
other states.”
With the exceptions of the Shanghai Cooperation Organization
agreement and, most importantly, the Council of Europe Convention on
Cybercrime (or Budapest Convention), cyber security has been a rather
an area with limited number of bilateral agreements. But the new Russia-
China agreement will be the latest in an increasingly long list of recent
cyber security-related agreements. In June, the African Union
(hereinafter A.U.) adopted the “African Union Convention on Cyber
Security and Personal Data Protection.” The Convention addresses e-
commerce and personal data protection, but also cyber security and cyber
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 21
crime. It commits A.U. member states to develop national cyber security
policies and to adopt criminal legislation to address, for example, attacks
on computer systems and data breaches. It also, however, addresses
information content. The Convention requires states to adopt criminal
provisions regarding computerized production and dissemination of
child pornography. Other provisions—more controversial for U.S.
audiences accustomed to the scope of U.S. First Amendment
protections—require criminalization of computerized creation and
dissemination of “racist or xenophobic” ideas, discriminatory threats or
insults, and expressions of denial, approval, or justification of genocide
or crimes against humanity. In September, NATO endorsed an
“Enhanced Cyber Defence Policy,” building on its 2011 “Policy on
Cyber Defence.” In a declaration accompanying a meeting of heads of
state, NATO affirmed that “international law, including international
humanitarian law and the UN Charter, applies in cyberspace,” and
clarified that “a decision as to when Dept of Computer Science, a cyber
attack would lead to the invocation of article 5 would be taken by the
North Atlantic Council on a case-by-case basis.”
The long-term impact of the proliferation of regional agreements on
prospects for an overarching international cyber security treaty is not
entirely clear. On the one hand, development of a number of agreements
could help build a road towards a broad international consensus groups of
states could agree on the same positions seriatim, or if a series of
agreements come to differing conclusions, then at least bargaining
positions would be clearer for purposes of negotiating a broad
multilateral treaty. On the other hand, regional agreements could lock
states into divergent positions and render subsequent compromise on a
single international agreement more difficult. The recent agreements
may be heading in this direction by entrenching the Russian-Chinese
view of the importance of “information security” (as opposed to the U.S.-
European Union emphasis on “cyber security”) and establishing an A.U.
position in support of criminalizing expression that would violate the
U.S. First Amendment.
22 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
V Conclusion
After conducting the in-depth study of above mentioned topic, the it
can be concluded that, criminal law has widened its area, from territorial
aspects now it has entered into the virtual world which is borderless.
Tackling criminal activities had never been a child's play and this virtual
world has added more strain in supervision of these activities. Present
legal system although capable enough of handling such crimes,
sometimes finds it very difficult in countering such crimes due to various
reasons as mentioned in the article.
The study contends that an urgent need for framing any international
law regarding cyber crime is required otherwise the day is not far when
the criminals will rule the world and we will keep sitting and making
treaties and conventions for the safeguard of netizens. Need for a
legislation to regulate electronic activities is as important as the need of a
civilized society to have law. If cyberspace be left ungoverned, it will
lead us to disastrous end where cyberspace shall turn into veritable legal
Siberia where greed, gambling, pornography and sex will reign supreme.
Cyber Crime: The Immediate Threat and Legal Issues Involved In Counteract | 23
THE PERVERSION OF PUBLIC
INTEREST LITIGATION*Kunika Khera
Abstract
Public Interest Litigation (hereinafter PIL) is one of the tools developed by the lawmakers to protect the interests of those who belong to the lower strata of the society and are unable to approach the court. Others can file petitions on their behalf and for the welfare of the general public. However, of late, the system of PIL has started to be misused and abused by the more elite sections. Instead of going to the judiciary with the intention of protecting public interest, many file cases for personal, political and economic considerations under the garb of protection of their fundamental rights. The process of litigation is being misused and time of the court is also uselessly wasted. The growing corruption and concentration of wealth has made the legal procedure lose its purpose and has become more perceptible to be used for ulterior motives. In the present paper, the increasing perversion of PIL are dealt in detail. Along with this, the role of judiciary in dealing with bogus and dubious petitions has been highlighted. A Public Interest Litigation Bill, 1997 was also introduced that sought to minimize the threat of groundless cases. Over these several years, the apex court has also gone on to fix parameters of admitting a PIL by the court. In a nation with great diversity and ingrained social stratification that has been part of its culture and society since its inception, it has become very difficult to bring in a method that would ensure justice to each and every individual. PIL has been developed as a solution to the same. Thus, it has become necessary to protect this institution in itself to make sure its advantages are actually availed by the community at large.
I Introduction
THE CONSTITUTION of India provides certain fundamental 1rights to each citizen of the country. These rights are believed to weave 'a
2pattern of guarantees on the basic structure of human rights'. They are
considered to be rudimentary and inalienable rights that cannot be
violated or infringed upon under ordinary circumstances. No individual
or organization, including the state can encroach the rights of others. In 3People's Union for Democratic Rights v. Union of India, the apex court
* Law student, Army Institute of Law, Mohali. 1 Part III of the Constitution of India.2 Maneka Gandhi v. Union of India, AIR 1978 SC 597.3 AIR 1982 SC 1473.
recognized the constitutional duty of the state to take relevant steps to
make sure that fundamental rights are observed and protected.
4 Articles 32 and 226 of the Constitution of India lay down remedies
for all the individuals to approach the Supreme Court of India and the
high courts in case of violation of their fundamental rights. Dr. Ambedkar
had observed that these two articles are the soul of the Constitution of
India. He believed that without these safeguards the whole Constitution 5would be a nullity. To champion the cause of protection of the said rights,
the judiciary has brought in a new tool called PIL. This development has 6
largely contributed to judicial activism in the nation. The main aim of
this technique has been to make sure that those socially, economically
and politically oppressed, who do not have resources to represent
themselves, get the opportunity to approach the court for relief. However,
the expansion of writ jurisdiction has brought many uncertainties and
reservations with it. It is said that the judiciary often crosses the
boundaries of judicial propriety to take over administration which is 7beyond their dominion. It must be recognized that this power must be
used with great attention and caution. Over the years, the judiciary has
also accepted that strict vigilance must be maintained to ensure the
process of court is not misused. The frivolous cases, in name of violation
of fundamental rights need to be filtered out to prevent the growing
perversion of the sanctity of the PIL.
II Public interest litigation in India
The idea of PIL was first pioneered in the cases of S.P. Gupta v. 8
Union of India. Elaborating on the concept, the seven-judge bench of the
4 Art. 32 and art. 226 give right to the citizens to approach the Supreme Court and the high court respectively, if their fundamental rights (and legal rights in the latter case) are infringed upon.5 Constitutional Assembly Debates, VIII, 350-353.6 Judicial Activism is a legal term that refers to decisions that are partially or wholly based on political and personal considerations.7 th Narender Kumar, Constitutional Law of India 478 (Allahabad Law Agency, 9 edn., 2015).8 Also known as the First Judges Transfer Case, AIR 1982 SC 149.
The Perversion of Public Interest Litigation | 25
Supreme Court observed that any bonade member of a public or social
group can invoke articles 32 and 226 for redressal of rights of persons,
who owing to certain disability, were unable to do so. PIL allows “public
spirited persons” to approach the courts for protection and enforcement
of rights of others, not for any personal motive but for the general public
interest.
9 Justice Krishna Iyer in Mumbai Kamgar Sabha v. Abdulbhai
observed that public interest is promoted by spacious construction of 10
locus standi keeping in line with the socio-economic circumstances of
the nation. Similarly, in various other cases, the ambit of PILs has been
expanded to include a plethora of issues to guarantee justice for all. The
apex court has explained that the PIL has been developed to render
complete justice to poorest of the poor, deprived, the illiterate, the urban
and rural unorganized sector, women, children, handicapped and the 11
other downtrodden.
The growth of PIL has led to protection of the most vulnerable
sections of the society. There is no parallel in the world that has proved to
be as effective as this tool. The current constitutional jurisprudence is
access to justice through “class action”, “public interest litigation” or 12
“representative proceedings”. PIL has brought in several positive
developments. The Supreme Court has brought in several orders, such as 14release of bonded leaders, ban on public smoking, guidelines for
rehabilitation for victims of rape and rules to prevent sexual harassment 16at workplaces.
The leniency and relaxation by the judiciary in PIL has led the courts
to play an adjudicatory as well as an investigative role which has led to
9 AIR 1976 SC 1455.10 Locus standi, in the traditional sense, means the right to move to the Courts for redressal.11 Guruvayur Devaswom Managing Committee v. C.K. Rajan, JT 2003 (7) SC 312.12 A.B.S.K. Sangh (Railway) v. Union of India, AIR 1976 SC 1455.13 Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549.14 Murli S. Deora v. Union of India, AIR 2002 SC 40.15 Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14.16 Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
26 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
17misuse of PIL. In the past few years, there has been a rise in cases where
PILs have been filed only for some pecuniary or other selfish interests and
gains. The idea that was produced for the poor, has now become an
instrument in the hands of those with oblique motives to fulfil their
personal motives.
III The Supreme Court of India on the misuse of writ jurisdiction
of the Supreme Court and the high courts
The Supreme Court, from time to time, has acknowledged that
power of judicial activism must be controlled and used with utmost
caution. The rising degradation of the social litigations have alarmed the
judiciary of the risks and dangers that the same may pose to its role in 18serving justice. In State of Uttaranchal v. Balwant Singh Chaufal and
19A.K. Pandey v. State of West Bengal, the apex court held that PIL must
not be used for private gains or financial or political reasons or for any
other motive. It must only be for public injury or wrong.
It has been observed that the let up of rule of locus standi does not
automatically allow people to approach the court under the appearance of 20 PIL. Therefore, the courts often dismiss and decline to accept petitions,
if they feel the same is vexatious in nature.
The court has further put up in clear words, in Ayaanbkhan 21
Noorkhan Pathan v. State of Maharashtra, that the courts must ensure
that the process of judiciary must not be abused and “ordinary
meddlesome bystanders are not granted a visa”. These suits waste the
precious time of the judiciary and also create frustration in the minds of 22
sincere petitioners. The PIL must be used with great attention and 23
circumspection. A writ petitioner has to not only come with clean hands
17 Ram Niwas Jain v. Ministry of Home Affairs, available at: https://indiankanoon.org/doc/11513098/ (last visited on August 28, 2017).18 AIR 2010 SC 2550.19 AIR 2004 SC 280.20 Supra note 6.21 AIR 2013 SC 58. 22 Janata Dal v. H.S. Chaudhary, AIR 1993 SC 892; C.P.M.S. Samiti v. State of U.P., AIR 1990 SC 2060; Bhartiya Homeopathy College v. Students Council, AIR 1998 SC 1118.23 M/s. Holicow Pictures v P.C. Mishra, AIR 2008 SC 913.
The Perversion of Public Interest Litigation | 27
24but also “with a clean heart, clean mind and clean objective.” There
must not be any ulterior motives. In T.N. Godavarman Thirumulpad v. 25Union of India, it was laid down that even if the case may be genuine; the
court has to dismiss it if the credentials and intentions of the petitioner are
in doubt. There is a plethora of similar cases that help us to infer the fact
that the judiciary has also acknowledged the threat of increasing number
of false PIL.
IV The Public Interest Litigation Bill, 1997
The United Front government introduced a bill in the parliament
concerning powers of PIL. The bill had proposed that an individual/s who
were approaching the courts through a PIL must make a deposit of rupees
one lakh, in case of the Supreme Court and rupees. 50,000/- in case of a
high court. This amount would be refunded if the decision was in favour
of the petitioner and the same would be confiscated if the petition was
dismissed.The provisions were confined to persons who had direct
personal interest, not for those moving to the court on behalf of a 'poor
person' whose income was not beyond rupees 6000/- annually. Apart
from this, the draft provided that PILs must be restricted only to cases of
legal injury to a definite person or specific set of persons. Litigation
against 'purely executive action' of the administration was also excluded.
26 Labelled as a 'black bill', the draft was widely criticised for
restricting the reach of legal justice. It choked on the court's power of
judicial review which has been held to be a basic structure of the 27constitution. The fact that executive actions are excluded from the
purview of PILs goes on to show the intention of the government in
bringing this legislation.
However, the bill in some ways was to important prevent frivolous
PILs. Putting a financial risk on approaching the court would prevent
24 Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) ISCC 590.25 AIR 2006 SC 1774.26 Supra note 5.27 Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.
28 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
useless and wrongful cases. Also since the PIL litigations are given more
importance, the general cases are left pending for decades.
The draft was not passed due to criticism received. Though the bill
had many loopholes and was introduced with an oblique intention, a bill
on similar lines may be created specifically to restrict unnecessary and
malade petitions.
V The abuse of articles 32 and 226 of the Constitution of India
It has been seen in several petitions the plaintiffs often take up the
contention that their fundamental rights have been infringed upon under
articles 32 and 226 of the Constitution of India, even when the same is
untrue and an alternative remedy is available in other legislations. Apart
from this, writ petitions have also been filed on irrelevant and useless
grounds. It has been extremely important for the judges to become very
vigilant in deciding whether a case is genuine or not and the courts have
many denied petitions in pursuance of this.
The Supreme Court, in Pravasi Bhalai Sanghathan v. Union of 28 India, dismissed a petition regarding menace of hate speeches during
election time, since the Indian Penal Code provided for sufficient remedy. 29
In Ahmedabad Women Action Group v. Union of India, the court
rejected petitions that questioned on certain personal laws on the ground
that the same included matters of the state legislations. Petition 30demanding review of earlier decisions was also rejected. The criminal
matters have also been excluded from the writ jurisdiction wherein the
case is filed by a stranger and not the accused. In the present case, a leader
of a political party had filed a PIL stating he had a sincere interest in future 31
of the convicts. The plea was dismissed. The case of Vinod Kumar v. 32State of Uttar Pradesh saw a petition by an advocate against transfer of
cases to other courts, including one of his own. Similarly, the apex court,
28AIR 2014 SC 1591.29AIR 1997 SC 3614.30Krishna Swami v. Union of India, AIR 1993 SC 1407.31Simranjit Singh Mann v. Union of India, AIR 2003 SC 892.32AIR 2001 SC 1739.
The Perversion of Public Interest Litigation | 29
33in State of Uttaranchal v. Balwant Singh Chaufal, had sentenced the
respondent to pay rupees. one lakh for filing an unimportant petition. The
respondent had challenged the appointment of the Advocate General as
his age was beyond the prescribed limit. The law regarding the same had
already been decided and it was held to be a waste of the court's time. In 34Sanjiv Choudhary v. State of Punjab, the petition was dismissed on the
ground that it had been filed to settle personal scores. The Madhya 35Pradesh High Court laid down that the judiciary must deal with the
growing perversion of PIL with an iron hand. If the current trends are
continued, this tool would become a weapon in the hand of dishonest
persons for their personal interests.
VI Guidelines for filing PIL
In furtherance of filtering out unauthentic petitions that would waste
the valuable time of the courts, the judges have set down guidelines in
certain cases. Some principles were laid in G.D. Managing Committee v. 36
C.K. Rajan. These are mentioned briefly below:
1. The courts can admit petitions which are filed by persons
who have genuine interest in the welfare of the affected
people, who are underprivileged and are not able to
approach the court. The judiciary is constitutionally
bound to protect fundamental rights of these poor and
destitute people.
2. The court may treat letters and telegrams as petitions in
cases involving matters of public importance, protection
of fundamental rights in par with constitutional duties
and functions of the government. Procedural laws may be
relaxed in such cases.
3. Judicious and fair trial shall be provided to all where
injustice is meted out a large people of India. Articles 14 33 Supra note 15.34 (2015) 7 SCC 167.35 Ramveer v. Union of India, available at: https://indiankanoon.org/doc/132183557/ (last visited on August 25, 2017).36 AIR 2004 SC 149, at 572-573.
30 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
and 21 of the Constitution of India and various
international resolutions on human rights endorse the
same.
4. The rule of locus standi is also relaxed, so as to make
available the legal machinery to the poor and deprived
who cannot go to the courts on their own when their rights
are violated. Now, other people on their behalf may
knock the doors of the judiciary.
5. When the violation of any constitutional rights of the
disadvantaged is prima facie, the court may not allow the
state to question the maintainability of the suit.
3 76. Whether principle of res judicata and other
corresponding ones would apply or not depends on facts
and circumstances of each case, even though procedural
laws apply on all PIL cases uniformly.
7. Disputes between two rival groups involving private law
are beyond the purview of PIL and are not to be agitated
as public interest litigation.
8. In cases where the petitioner may have moved to the court
for his or her private interests, the court may decide to
admit the matter in pursuance of public interest and
require investigation into the subject of litigation.
9. In certain circumstances, the court can appoint
commissions and committees for investigating into the
case. Such a committee may be asked to take over the
direct administration of the public organization. The
court would have to make sure that it must not transgress
into any policy. It must take care not to go beyond its
jurisdiction in protecting the rights of others.
37 Res judicata refers to cases that are already decided and cannot be pursued on by the same parties.
The Perversion of Public Interest Litigation | 31
10. The courts should not ordinarily step out of the realms of
judicial review. The high courts can pass orders to
provide justice to the parties; however, it does not have
the same power as provided in article 142 of the
Constitution of India.
11. The high courts, ordinarily, cannot entertain PIL that
question the legality or validity of statutory regulations.
Relying on the above case, the apex court in Santosh Sood v. 38
Gajendra Singh, has held that a civil suit pending means that the high
court cannot ordinarily entertain a PIL on the same matter. A PIL must not 39hinder the due process of law of the court. The Contempt of Courts Act
would apply in matters where an abuse of procedure of court was taken on
by any of the parties. Similarly, in Balco Employees' Union (Regd.) v. 40
Union of India, the Supreme Court has fixed standards that are necessary
for admission of PIL.
1. The petition involves a large number of people, and must not be
individualistic.
2. The affected people are part of the underprivileged section of
society.
3. Judicial law making is important to prevent exploitation and provide
justice.
4. Judicial intervention is required to protect the sacred institutions of
democracy.
5. Administrative decisions have resulted in being harmful to the
resources.
These parameters are merely evocative and not exhaustive.
38 AIR 2010 SC 593.39 The Contempt of Courts Act, 1971.40 AIR 2002 SC 350.
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VII Conclusion
The tool of PIL has seen degradation in standards due to various
factors. Increased number of spurious cases filed, cases filed for selfish
gains etc. contribute to this. PIL is basic part of the open democracy in
India. Therefore, instead of wiping out the whole system, an alternative
solution must be developed to deal with the issue. Soli Sorabji, the former
Attorney General of India, mentioned three rules for regulating misuse of 41PIL:
1. Dismiss petitions at the beginning and in certain cases, with
exemplary costs.
2. Important social legislations that are delayed unnecessarily sue to
irrelevant PIL must be excluded.
3. Undertaking or a deposit must be taken from petitioners before
admitting a PIL in the court.
Before admitting any petition, the court must identify the parties and
make sure the grounds on which the case is filed are relevant and
authentic. There must a genuine legal injury or wrong suffered. Flushing
out of irrelevant and frivolous suits must be the priority of the courts at the
moment. The courts must also make rules for bifurcation between PIL on 42
the basis of civil and criminal matters for convenience in the process.
All attempts to misuse the PIL which is sometimes fraught with danger,
have to be thwarted. Courts have to be cautious and circumspect in
entertaining PIL-reason being that instances of vindicating personal
cause or feeding fat the grudge as also for personal gain or to ventilate the 43
cause of others having oblique motives, may be multiplied. Judiciary
must be vigilant and careful in admitting petitions. The same may lead to
increase in instances of spiteful individual causes and grudges disguised
as a public cause.
41 Shinsy P.S., “Abuse of Public Interest Litigation”, available at: http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html (last visited on October 29, 2017).42 Supra note 36.43 Nand Kishore Nautiyal v. Tehri Hydro Development, 2000 (3) AWC 2024.44 Tarak Singh v. Jyoti Basu, 2005 (1) SCC 201.
The Perversion of Public Interest Litigation | 33
However, at the same time, as J. S. Verma J, the former Chief Justice
of India, had adequately observed that the judiciary must sometimes go
beyond its jurisdiction to undo excesses of the executive. However, the
judiciary would have to shrink back to its place, once the executive is 44brought into place. Thus, the judiciary is to also maintain itself within its
realms and is not provided with absolute discretion over its powers.
A favourable balance is required to be maintained in pursuance of
providing justice to all and in protecting the sanctity of legal proceedings.
The threat to efficiency of the judiciary must be curtailed through efforts
from the court as well as petitioners, who must act as active and vigilant
citizens and not use the right provided to them so sparingly.
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STUDY ON CENSORSHIP IN INDIA WITH SPECIAL
REFERENCE TO RELIGION AND OBSCENITY*Niranjan E V
**Vishaka Nikkam
Abstract
The extent of article 19(1)(a) of the Constitution of India is being widely discussed upon, this gives the right to express one's own opinions verbally, in writing, by printing or any other means. We come across various social and religious groups that start protesting and agitating on motion pictures that curb their ideology. However, filmmaker's choices have been curbed through pre-censorship. The censor board in India censors films on grounds of nudity, violence and any other matters that are considered to be politically, legally and morally offensive. This paper ventures into the concept of films being banned on grounds of religious beliefs, traditions and cultures. These factors are considered to ruin communal harmony and peace in the society. This paper discusses the concept of cinema and its legal framework in India along with censorship on the basis of religion and obscenity in the light of the fundamental right of freedom of speech and expression guaranteed to every citizen. More importantly, the misuse of powers of the censor board in this context is also looked into along with the recent incidents.
I Introduction
THE CONSTITUTION of India guarantees right to freedom of
speech and expression under article 19 (1)(a) as a fundamental right.
Freedom is the condition of setting ourselves liberal and to be free. The
Preamble of the Constitution of India also promotes the concept of 1'liberty', which includes liberty of thoughts, beliefs and expressions.
Further, clause (2) of article 19 focuses on the reasonable restrictions on
the freedom of speech and expression. It says that the right to freedom of
speech and expression shall not be exercised by the people in such a way
that it affects the sovereignty and integrity of our country including the
security of the state. Moreover, fraternity, public order, decency and
morality or with regard to contempt of court, defamation or incitement to
an offence shall also be taken into consideration before exercising the * rd3 year student, B.A. LL.B (Hons.), School of Law, CHRIST (Deemed University), Bangalore.** rd3 year student, B.A. LL.B (Hons.), School of Law, CHRIST (Deemed University), Bangalore.1 The Constitution of India, art. 19(2).
fundamental right to freedom of speech and expression under 19(1)(a), is
all that is envisaged under article 19(2). Therefore, the freedom that is
guaranteed in article 19(1)(a) is not absolute because the state has the
right to put forth reasonable restrictions for the citizens to not go beyond
certain ambits. These restrictions are placed for public good and peace in
the society. Thus, the restrictions must be 'reasonable'. Relating this to the
focus issue, cinema or motion pictures is the art of colorful moving 2images. Freedom of speech is interpreted to be exercised not only by
means of speech but also through various means such as music, art, 3
literary works, etc. These days, cinema is regarded as one of the
important platforms to express one's thoughts and ideas. Cinema acts as
an important source of showcasing ideas and values of the dynamic
world.
In a county like India, religion majorly affects the social structure
and interaction among people. Showcasing religious beliefs and ideas in
motion pictures have recently created various social traumas, disturbing
peace. This happens only when people find the story line to be disturbing
their religious thoughts and beliefs. Extent and right of the filmmaker in
exercising his free speech is the matter of question here.
II Legal framework and censorship
Under article 19(1)(a) of the Constitution of India, the means of
communication to exercise the right is not explicitly mentioned. The
Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 4 1983 are the legal frameworks governing censorship in India. The 1952
Act, under section 3, gives powers to the central government to create a
board called the Central Board of Film Certification (hereinafter 5
mentioned as censor board). The board consists of non-official members
2 Gabe Moura, “What is Cinema, Elements of Cinema”, available at: www.elementsofcinema.com/cinema/definition-and-brief-history (last visited on June 13, 2017).3 Dr. S.R.Myneni, Media Law - With Right to Information Act 40 (Asia Law House,
ndHyderabad, 2 edn., 2013).4 Ibid. 5 Central Board of Film Certification, India, available at: https://www.cbfcindia.gov.in/main/14/about-us.html> (last visited on June 20, 2017).
36 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
and a chairman, appointed by central government and functions with
headquarters at Mumbai. There are nine regional offices in the country 6that are assisted in the examination of films by advisory panels. The
members of the panels are nominated by central government by drawing 7
people from different walks of life for a period of two years. Thus, only
after the said board has certified films, can they be publicly exhibited.
The Act vests powers to the censor board to censor any motion
picture on the grounds mentioned under section 5(B) of the Act and
according to the 'reasonable restrictions' placed under article 19(1)(a) of
the Constitution. But however, the powers vested in the hands of the
censor board are widely being misused. It is seen that the restrictions
placed by the censor board are beyond reasonability, thus challenging the
scope of freedom of speech and expression of the filmmaker.
The Cinematograph (Certification) Rules, 1983 lays down the
procedure that a producer must go through to get his film certified. It
explicitly specifies the steps to be followed and the fees to be remitted for
purpose of the same. The film or video film and other materials specified
in rule 2.1 have to be submitted to the regional officer of the concerned
regional centre. The regional officer will then form an Examining
Committee to view the film on the basis of the submitted materials.
Under rule 22, this Examining Committee, in the case of a short film,
will consist of an officer of the CBFC and one advisory panel member.
Either of these panel members shall be a woman, and in the case of a long
film or feature film, four of the two persons shall be women. After the film
has been previewed, the CBFC has to ensure that each member gives a
report in writing about his recommendations about the deletions and or 8
modifications and the certificate the film should be given. This report is
then given to the chairperson who will delegate the regional officer to
initiate further procedures regarding the same.
6 Supra note 5. 7 Ibid. 8 Central Board of Film Certification, India, available at: https://www.cbfcindia.gov.in/main/14/about-us.html (last visited on June 30, 2017).
Study on Censorship in India with special Reference to Religion and Obscenity | 37
If the chairperson on his discretion or on the request of the applicant so
feels, she may also refer the film to Revising Committee under rule 24.
The Revising Committee will comprise of chairperson, in his absence, a
board member and not more than nine individuals, selected either from
the CBFC advisory panel, provided none of them was on the Examining
Committee shaped before. The Revising Committee will see the same
film print shown to the Examining Committee with no progressions, and
every member will be required to record his decision before leaving the
theater. If the chairperson is not in agreement with the majority view, she 9
may direct another Revising Committee to see the film. The maximum
members in the Revising Committee should be five among whom no less
than two people might be women. The number of women individuals
should not be short of what one-portion of the aggregate individuals from
a panel constituted under sub-rule (2). After the applicant in informed
about the choice of the board, he will erase any bits (if so coordinated)
and submit them to the regional officer, alongside one duplicate of the
film as certified. The matter can go on for an appeal under section 5C of
the 1952 Act. The appeal goes to the Film Certification Appellate
Tribunal (FCAT) that is headed by a retired judge, who is the chairperson,
and not more than four members. The FCAT should hear both the
applicant and the CBFC before it pronounces its judgment.
III Article 19(1)(a) and censorship
While we discuss the demand for censorship in India, we also need
to put light to the constitutional provisions, which are directly hit by such
demand for censorship. Article 19 of the Constitution of India grants and
guarantees to the Indian citizens, protection of rights regarding the
freedom of speech and expression. While article 19(1) (g) grants citizens
the right to practice any profession or to carry out any occupation, trade or
business. The Constitution of India has laid down on principles of liberal
democracy, which demands such a right to raise out one's opinion and
views with a reasonable restriction.
9 Supra note 5.
38 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
It is seen that most often, the reason cited by almost all the governments
on banning of certain movies was that the movie is 'blasphemous and
offensive' and might hurt the 'emotions' of the people of the minority
community, and hence, in turn, disturb the 'peace and tranquility of the
state'. And this balance has been elaborated in the form of restrictions to
freedom of expression under article 19 (2). These have to do with the
sovereignty and integrity of India, the security of the state, friendly
relations with foreign states, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence. In
this sense, there will be reasonable restrictions to free speech which affect
the country's integrity and disturbs public order, decency and so on and so
forth. The ban on a film is legally justifiable only on these seven grounds,
and none else.
Films while providing entertainment, also provide education,
develop a national character, and mirror the society at large. However
films often become the target of public ire and of censorship. The
problem here is that the examining committee tends to see and judge a
film on the basis of a song or a dialogue in a film and not the whole. They
tend to look at a dialogue and not the context in which it is placed. The
Supreme Court of India has observed that pre-censorship is nonetheless
an aspect of censorship in itself, which holds the same idea in quality to
the material as censorship that takes place after the movie has had a run in
the theatres. There is not a big difference between the two, except the fact
that pre-censorship is a stage where the state imposes regulations 10
between the individual and his freedom to produce the movie.
IV Censorship vis-a-vis religion and obscenity
It is surprising to find that the largest democratic country in the world
curtails the right to freedom of speech and expression. The Constitution
explicitly says that the country is secular, republic and democratic with
freedom of expression as a fundamental right. Alongside, the
10 Livelaw News Network, India, available at: http://www.livelaw.in/sc-notice-centre-cbfc-palekar-plea-pre-censorship-films/ (last visited on June 30, 2017).
Study on Censorship in India with special Reference to Religion and Obscenity | 39
Constitution also prohibits any act that offends religious sentiments.
Thus, it tangles a filmmaker or an artist to go beyond the boundaries,
specifically in religious, sexual and moral areas. The government of India
banned a BBC documentary about rape, Leslee Udwin's 'India's daughter'
on the grounds of sexual violence against women hurting moral feelings
of the society at large. All that was required was for the Delhi police to tell
a magistrate's court that the film "may lead to widespread public outcry 11and serious law and order problems.”
A few recent controversies over Sanjay Leela Bhansali's Padmavati
and the Prakash Jha production Lipstick Under My Burkha, which have
ignited the debate between the liberals and the conservatives, between
the custodians of Indian culture and the urban intelligentsia. But in the
cacophony of arguments and counter-arguments, no one has referred to
the blueprint of the young nation-the Constitution of India.
Those movies which have been censored claiming that they hurt the
religious sentiments of the people include the movie 'the Da Vinci Code'
(2006) that was banned in five states in India as it hurt the sentiments of
the Christian community. The movie, and the book by the same title,
questions the Christian belief that Jesus never committed the original sin.
According to the book and the movie, Jesus had married Mary
Magdalene and had a daughter from her. Although the book ('Da Vinci
Code') is freely available in most of India except in Nagaland, the film
adaptation of the same ran into rough waters. Likewise, 'Sins' (2005)
dealt with the theme of a Keralite Roman Catholic priest who falls in
love. He has to struggle with his lust and sexuality. But the Roman
Catholic Church claimed that the movie depicted the Church and the
priests in a questionable manner. It is banned in Kerala.
An important decision this regard is Rangarajan v. P. Jagjivan 12Ram. In an appeal before the Supreme Court, the decision of the Madras
11 "Independent", available at: http://www.independent.co.uk/news/world/asia/the-saffron-censorship-that-governs-india why-national-pride-and-religious-sentiment-trump-freedom-10137186.html (last visited on July 8, 2017).12 (1989) 2 SCC 574.
40 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
High Court was challenged for revoking the U certificate issued to Tamil
film called Ore Oru Gramathile (in one village) as the film criticized the
reservation policy of the Tamil Nadu Government. It was held that the
reaction to the film in Tamil Nadu is bound to be volatile. But the
Supreme Court of India reversed this decision while upholding and
giving prominence to the freedom of speech and expression.
Recently, the Central Board of Film Certification refused to certify
the public screening of a Malayalam film, 'Ka Bodyscapes' by a New
York based filmmaker, Jayan Cherian on the grounds of vulgar and
o ffens ive scenes . The reg iona l o fficer o f the CBFC in 13
Thiruvananthapuram wrote that the revising committee felt that the
entire content of the Malayalam feature film 'Ka Bodyscapes' is
portraying Hindu gods in a poor manner, thus ridiculing, insulting and
humiliating the Hindu religion. Derogatory words are used against
women and also pictures scenes which throw positive light on
homosexual relationships. The Hindu God Hanuman is shown to come in
books titled, 'I am Gay' and other homosexual books. The film offends
human sensibilities by being vulgar and obscene.
V Case analysis
In the case of Phantom Films Pvt. Ltd. and Anr v. The Central Board 14 15
of Certication, a writ under article 226 was filed in the High Court of
Bombay with regard to directing the respondent to issue in favour of the
petitioners a certificate styles as 'A' in respect of the bollywood movie
'Udta Punjab' which was subjected to censorship. Freedom of speech 16
under article 19(1) has been discussed and the case was heard on merits.
The film in this case is one of fiction, wherein there are depictions of the
problems faced by the people of the state of Punjab on account of drug
addiction. Once the film was ready, the petitioner applied to respondent
13 The Hindu, Kochi, available at: http://wwiw.thehindu.com/news/national/kerala/Ka-Bodyscapes-refused-certifcation/article14509792.ece (last visited on February 20, 2017).14 2016 (4) ARB 593.�15 Supra note 1 at art. 226.16 Id. at art. 19(1).
Study on Censorship in India with special Reference to Religion and Obscenity | 41
no. 1 for certification of the film. The respondent after examining the film
had conveyed that it had referred the subject film to Revising Committee,
no copy of reports or remarks was given in regard to the same. The
Committee was supposed to submit its report within three days but its
decision was not conveyed. The Revising Committee and the board came
to a decision that the film is not suitable for unrestricted public exhibition
but may be suitable for public exhibition restricted to adults provided that
the excision or modifications are carried out. It was the contention of the
counsel for the petitioners that the producer of the film had incurred so
much of expenditure and made a huge investment in the films and
therefore expected the statutory authorities to act reasonably. Among
other things the petitioners had an issue also because reasons for
requisitions of various modifications were not stated. The subject of the
film should be dealt with by the producer or maker of such film, this is the 17
right guaranteed under article 19(1) (a); cuts in the film should not be
given merely because the board holds an opinion that those parts are
unnecessary or not required in the story of the film. The film was
supposed to cater to an adult audience and hence they had applied for 'A'
certificate. The deletions asked for would destroy the theme of the film. It
was also held that when the order passed by the board runs counter to the
objectives of film certification completely and negates the constitutional
guarantee then courts can interfere.
The court after looking into the script has come to a conclusion that
nothing therein will affect the sovereignty and integrity of India.
Therefore an 'A' certificate was issued. The film deals with drug
addiction, which is a socially and morally relevant subject. The
respondents, as per statutory authority constituted under The 18Cinematograph Act, 1952 were empowered to certify and examine
cinematograph films prior to their exhibition. The important matter here
was that the film was a fiction, and upon displaying a disclaimer to the
effect that there should not be any specific issue as to censor the part
17 Supra note 1 at art. 19(1) (a).18 The Cinematograph Act, 1952 (Act 37 of 1957).
42 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
mentioning it to be Punjab. Such extreme form of censorship would
restrict creativity and flow of thoughts and social issues in the society.
The court also laid emphasis on the fact that we are operating in a
democratic country and therefore no one is restricted from expressing
himself or herself only because they differ in their thoughts.
19 In 2004, a documentary film, 'Final Solution' that focuses on
religious conflicts between Hindus and Muslims, was banned. The 2002
clashes in Gujarat were portrayed in the movie. The censor board justified
it saying that the film was highly proactive and may trigger off unrest and
communal violence. The ban was later lifted after a series of campaigns. 20
Similarly, in the State of Tamil Nadu, Kamal Hassan's Vishwaroopam, a
2013 Tamil film was banned on the grounds of religious tension between
Hindus and Muslims. Later, the ban was lifted after certain scenes were
deleted.
21 In A.K. Adarsh v. Union of India the court held that license cannot
be granted merely on the basis that a previous film containing more or
similar obscene or pornographic scenes had been granted a certificate. It
said that the particular film needs to be viewed and only if it is in
conformity with the law, then alone should it be entitled to a certificate by
the board. In such cases the petitioner will not be allowed to avail article 22
14. In this case the court also iterated that sex and obscenity are not
always synonymous and it is wrong to classify sex as essentially obscene
or even indecent or immoral. It should be our concern, however to
prevent the use of sex designed to play a commercial role by making its
own appeal. This draws in the censor's scissors. The points laid down in
this case reflect a liberal thinking which is apt for our society. Sex is a
natural phenomenon and no film should be banned merely because it
involves such scenes.
19 "Freedom of Expression and the Politics of Art Films of Anand Patwardhan", available at: www.Patwardhan.com (last visited on August 8, 2017).20 PTI “Ban on Kamal Haasan's “Vishwaroopam” lifted in Tamil Nadu” The Economic Times, Feb. 03, 2013.21 AIR 1990 AP 100.22 Supra note 1 at art. 14
Study on Censorship in India with special Reference to Religion and Obscenity | 43
A few movies are censored on the ground of obscenity, illustrations
of such movies include- Mira Nair's 'Kama Sutra-A Tale of Love' (1996)
which dealt with a story of four lovers in 16th century India. Though
Kama Sutra, the book is easily available in India, the censor board still 23
found the movie too explicit, unethical and immoral. Likewise, Gandu
(2010), a Bengali film that was a rap musical, created enough buzz for its
scenes of oral sex and nudity so as to be qualified as defying Indian
sensibility. The censor board banned its screening. Even some foreign
films have been banned in India. Although the book, 'Fifty Shades of
Grey' is a popular book in India, the movie, based on it, was censored for
its sexual theme and nude scenes. Of course, the most famous movie to
invite criticism on the ground of obscenity was Shekhar Kapur's The
'Bandit Queen' (1994) was based on the life of Phoolan Devi, the dreaded
dacoit of U. P., the movie included a front nude scene, rape scenes and a
barrage of explicit words. The censor board granted an 'A' or adult
category certificate to the movie and permitted its screening. But the
grant of 'A' grade certificate and the possibility of its screening was
challenged before the Delhi High Court. The controversy finally reached
the Hon'ble Supreme Court in the case of Bobby Art International v. Om 24
Pal Singh Hoon and Others.
25 In Shankar v. State of Tamil Nadu, the Supreme Court observed
that, when promotion of art and culture is the primary underlying object,
how can obscenity, cruelty and many such wicked things be depicted and
shown in such blown-up and magnified manner leaving an impression
that the film is meant only to depict such things. It is here that the censor
board should step in firmly and insist that the film being released has a
message meant to improve the values of life. By exhibiting scenes of
violence, sex, rape, bootlegging and drug trafficking etc. in such a
manner or manners which have the propensities of disturbing or
corrupting the minds of some viewers like children particularly of those
23 "Gandu Finds Its Groove" Times of India. Feb 7, 2011.24 AIR 1996 SC 1846.25 (1994) 4 SCC 478.
44 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
who are weak minded, wayward, indisciplined, frustrated and likewise,
who are very likely to become wicked and evil-minded and ultimately
end up as criminals indulging in organized crime, the avowed objects gets
frustrated. The films should be educative value and then only they can
play an important role in sub serving the interests of the society. No
doubt, entertainment is one of the important underlying objects but it is
mainly meant to make the viewers mentally relax and enjoy and not to
render them heavy-hearted, sensually aroused and mentally disturbed
which may lead them to indulge in frivolities, perversions and dangerous
addictions, which ultimately are likely to pave the way to end up
themselves as criminals.
VI Analysis
As we look into the implications of censorship, it can be found that
censorship not only affects freedom of speech and religion but also the
freedom to practice or profess any trade or occupation, that is also 26
guaranteed as a fundamental right under article 19(1)(g). Banning of
films eventually affects the essential aspects of film business. The 27reasonable restrictions placed under article 19(2) are for the public at
large. But it is important to note that this affects an individual's personal
rights. If a film causes religious tensions and affects emotions of a
particular group of people in the society, they indulge in activities and
protests that are violent in nature, disrupting public peace and order. So
there is no ground in pointing that the movie per se is causing violence,
but rather the mentality and the way people perceive and interpret it to be. 28
Moreover, the grounds mentioned under article 19(2) are sometimes
manipulated and interpreted in the widest sense, which is resulting in the
ban of films on slightest opportunities. India being a diverse country
cannot be always placed as a reason to put forth restrictions. Over time,
these restrictions have not seen any way to development. Moreover, films
or motion pictures are a way of expressing ideas, thoughts, information
26 Supra note 1 at art. 19 (1)(g).27 Supra note 1 at art. 19 (2).28 Ibid.
Study on Censorship in India with special Reference to Religion and Obscenity | 45
and creativity and by restricting this we are depriving not only the people
of India from developing, learning and 'right to information', but also film
makers of their free flow of ideas and creativity.
The legislation and rules that govern cinematography in India have
been formed decades ago, reflecting the kind of society we once lived in,
which was not open to new ideas and was backwards. Therefore, there is
an urgent need to reform the censor board and their rules. Though various
committees have been set up by the central government to look into this
issue, it is noted that very little have been done to implement the
suggestions brought forward by the committees. An Expert Committee
was also set up which suggested the government to take any reforms with
regard to the censor board. However, no steps have been taken on
reformation steps have been taken on the same.
Decency and morality are vague terms, what might be the standards
for conforming to be decent and moral to one sect of the society might not
be the same to another sect which might think it to be outrageous. The
meaning attached to these terms change with time, social construct and
culture. There is a difference between obscenity and vulgarity, the latter
would arise a feeling of disgust in people. When films are banned
claiming them to be obscene other kinds of vulgar motion pictures are
produced, these include porn. In such production women are ill treated
and the consumption of such motion pictures is also bad for the society.
We need to look at censorship from the point of view of producers of
motion pictures, particularly pre-censorship, which is done before
granting the certificate. The producers would have anticipated a 'U/A'
certificate for a particular film on which hard work of a group of
professionals would have gone into, but the board in such cases would
agree to grant that certificate only if the cuts prescribed by them have
been met with. The problem with giving effect to such cuts in films would
be that the storyline or the flow of the film would be interrupted.
46 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
VII Recommendations
Freedom of speech and expression has evolved over the years under
different perspectives. The censor board issues certificate to films on the
basis of who can view the film. So, when the board issues an 'A' or a 'U/A',
it obviously included all adults under the ambit of the viewers, who are
capable of comprehending things for themselves. Anticipation and
presumption of the consequences shall not be the grounds of banning the
film. As motion pictures relate to every man's practical life, the law must
be in consonance with it. Therefore, there must be a reformation in the
existing laws per se. With freedom comes responsibility, which should be
vested in every citizen of India. Ratings for mature viewers are
appreciable rather than just cutting down scenes completely. The process
of censorship shall take place in light of the period and the people
depicted in that film, rather than seeing in a contemporary point of view.
The function of the censor board shall be limited, and so that of the
chairman eventually, to be only advisory in nature.
VIII Conclusion
Censorship's basic aim is to maintain law and order, public peace
and harmony in the society. But using this reason henceforth is simply
ridiculous and arbitrary. We must understand that every person in India
should be given an option to see and form an opinion of things for
themselves; no one should be able to feed something into the minds of
people. Though a huge population is not well educated, India as a country
is developing and this development has been brought forth in various
fields through creativity and ideas, therefore this form of creativity and
free flow of thoughts should not be restricted. It is always the people with
prejudices and stereotypical views that indulge in misleading other
people in order to serve their own needs. As discussed previously, the
activities of the censor board are also highly manipulative and debatable.
Even judicial decisions on baraing films have not created any end point to
the issue but have only given rise to similar issues. Therefore, a
permanent solution is needed. The power of the state on the censorship
Study on Censorship in India with special Reference to Religion and Obscenity | 47
issues must be limited and must satisfy the centre with reasoning as to
why a ban on that particular film is needed and why they were left with no
other choice except to censor the film. The power to decide on restricting
free speech must be made in conformity with reasonable standards. Only
when there is an absolute necessity to prevent direct harm on the society
at large, should the restrictions play their role. Therefore, it can be
concluded that in a democratic country like India, freedom of speech and
expression on films can be restricted only when there is an extreme
anticipation of direct harm to the people. However, at the same time, a
filmmaker has to know that the peace and harmony among the people
should not be disturbed in the process of expressing his views and
expression and also that no film maker would produce a film which would
bear such grave consequences. On the other side, the restrictions placed
must not harm any individual's basic human right on his views on the
society. Screening of films and documentaries is definitely a challenging
task, as it impacts people's thoughts and induces various contemplations.
The censor board should work prudently and effectively in understanding
the design of a film, the intentions and the impacts, and screen the same
accordingly rather than making a wider sense of the restrictions placed,
eventually curtailing mere freedom of speech and expression. The issue
has to be looked into and solved in a 'need of the hour' approach. Effective
way forwards must indeed be taken up by respective authorities, which
highlights towards bringing on amendments to the legislation and rules
governing film certification.
48 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
THE RIGHT TO EDUCATION:
A CASE OF JUDICIAL ACTIVISM
Pritam Banerjee*
Rajat Halder**
Abstract
Education is one of the basic needs of the human society in this modern world. Rate of education is an index to judge the rate of development of a nation. Education is now widely valued not only for its intrinsic value in enriching the lives of individuals but also for its functional value in the development of the human capital of a nation. Gender, race, caste, and language differences were deep rooted into the Indian society. They have all contributed so much in the leg pulling of Indian society as a whole that it resulted for its downfall in terms of education, economy & development. In a country like India with such huge population the rate of education is always a major concern. In the early days of independence, education as a basic need was recognized under the directive principles of state policy in the Constitution of India. However, later on through judicial activism the right based approach was given to education by including it within the scope and ambit of article 21A. Moreover, in the year 2009, Right to Education Act was enacted and through this specific law educational right for all citizens of India was secured. This paper will define the right and will give an idea about its development and recognition under the Indian legal system.
I Introduction
EDUCATION AND its spreading rate can be traced as a sole
criterion for judging a nation's development. Education in India is
provided by the public sector as well as the private sector, with control
and funding coming from three levels i.e. central, state, and local. The
Indian government lays emphasis on primary education up to the age of
fourteen years, referred to as elementary education in India through an
unambiguous moto of "all for knowledge, and knowledge for all.”
Holistic view of education has been interpreted in the National
Curriculum Framework, 2005, with implications for a systemic revamp
of the entire content and process of education with significant
implications for curriculum, teacher education, educational planning and
management. The Right of Children to Free and Compulsory Education
* th 5 year student, B.A. LL.B, S.K.Acharya Institute of Law, Kalyani University, W.B.** th5 year student, B.A. LL.B, S.K.Acharya Institute of Law, Kalyani University, W.B.
Act or Right to Education Act is the guiding Indian legislation enacted by
the Parliament of India, which describes the modalities of the importance
of free and compulsory education for children between six and fourteen
year age group.
II International perspective
Education in the United States is provided by both, public and
private schools. Public education is universally available, with control
and funding comes from state, local, and federal governments. Public
school curricula, funding, teaching, employment, and other policies are
decided through local elected school boards with jurisdiction over school
districts. State governments have control over educational standards and
standardized tests for public school systems. Governments supported,
free public schools for all, started being established after the American th 1
Revolution, and expanded in the 19 century. The Constitution of India
guarantees human rights, but not the right to education. Education is
compulsory over an age range beginning somewhere between ages five to
eight and ending somewhere between ages sixteen to eighteen,
depending on the state. This requirement can be satisfied by educating
children in public schools, state-certified private schools, or an approved
home school program. In most schools, education is divided into three 2
levels: elementary school, middle or junior high school, and high school.
Educational system in China is a state-run system, public education
run by the Ministry of Education. All citizens must attend school for at
least nine years. The government provides primary education for six to
nine years, starting at age six or seven, followed by six years of secondary
education for ages twelve to eighteen. Some provinces may have five
years of primary school but four years for middle school. There have
1 Gianna Alessandra Sanchez Moretti, et. al. “Literacy from a Right to Education Perspective”, UNESCO: Director-General of the United Nations Educational, Scientific and Cultural Organization, submitted UN General Assembly, 2013.2 Antonella Corsi-Bunker, “Guide to The Education System in the United States”, available at: http://isss.umn.edu/publications/USEducation/2.pdf. (last visited on December 30, 2017).
50 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
three years of middle school and three years of high school. The Ministry
of Education reported a 99% attendance rate for primary school and an
80% for both primary and middle schools. With regard to the age when
compulsory education ends, China has a system of nine years'
compulsory education which, according to the Education Act, may not
begin before the age of six. In actual practice, owing to differences in
regional conditions, the age at which children begin their education
varies nationwide, and the age at which they finish it varies accordingly.
According to legal provisions of China, the youngest age at which a
worker may be hired is sixteen, and the great majority of children in
China have finished their compulsory education by that age. Article 19
(education), article 24 (socialist education) and article 46 (education) 3promotes education.
After completion of primary school most children in Japan attend
state public junior high schools. Many of these are non-selective
comprehensive schools, this means that any pupil can attend. It is co-
educational and a small number of students attend private schools. These
private schools are not funded by the state but obtain most of their
finances from tuition fees paid by parents. The students in Japan have to
go to another support school after school. This type of school guides the
students' learning and teaches them to enhance their skills. If a student has
an entrance examination for an elite school or university, they have to
study for that exam at that school article 26, para 2 of the Constitution
provides for compulsory education in free of charge, but the government
interprets the provision narrowly as prohibiting collection of tuition fees,
it considers the free provision of textbooks merely as a legislative option.
As a result, the parents have to bear a burden of educational expenses
including fees, cost of teaching materials, school meals and other
necessities such as designated school and training uniforms. Articles 20,
23, 26,14,10,11 and 12 cover all the aspects of education, equality,
3 OECD “Education in China: A Snapshot”, Organisation for Economic Co-operation and Development, 2016.
The Right to Education: A Case of Judicial Activism | 51
4religion and moral education etc.
III Historical development of right to education
On April 20, 1986 a new education policy, the National Policy of
Education, 1986 was placed before the Indian Parliament for
consideration and approval. The following objectives of education were 5particularly emphasized in this policy:
1. Vocationalizaiton of education: Particularly, at the secondary stage
of education the curriculum should be job-oriented.
2. To encourage the governmental and non-governmental efforts for
wiping out illiteracy and to emphasize the necessity of adult
education, formal education, farmers' education and 'open' schools.
3. To awaken the people about the various scientific and technological
developments and to make the students at the various stages of
education aware of the same in order that they may utilize them in
their future life.
Eight bold steps on National Policy of Education, 1986
1. National system of education to provide access to education of a
comparable quality to all students, to have common educational
structure with national curricular framework containing a common
core.
2. Pace setting Navodaya schools to be started which will be residential
and free of charge.
3. Vocational courses to cover 10 percent of higher secondary students
by 1990 and 25 percent by 1955.
4. To ensure that all teachers should teach and all students study.
4 EP-Nuffic, The Japanese Education System Described and Compared with the Dutch stSystem (1 edn., 2010).
5 “Right to Education – Evolution and Judicial Contribution – International Instruments - The Parameters of the Right and the Problems of Enforcement”, available at: http://www.nuffici.nl/en/publications/find-a-publication/education-system-japan.pdf (last visited on October 23, 2017).
52 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
5. Beginning to be made in delinking degrees from jobs in selected
areas.
6. Evolving a strategy of decentralization and the creation of a spirit of
autonomy for educational institutions.
7. Constitution of this service is likely to bring a national perspective in
education.
8. Resources to be raised through:
(i) Asking beneficiary communities to maintain school buildings.
(ii) Raising fees at the higher levels of education, and
(iii) Levying cess or charge on the user agencies.
Efforts from educationists, academics and civil society groups that
focused on a rights based approach finally yielded results in 2002, when th
the 86 Constitutional Amendment Act was passed by parliament and
article 21A, which makes right to education a fundamental right, was
included in the constitution. In doing so, it put the right to education at par
with the right to life stated in article 21. Article 21 A states: “the state shall
provide free and compulsory education to all children of the age of 6 to 14 6
years as the state may, by law determine”.
IV Constitutional evolution of right to education
through judicial activism
Directive principles of state policy
Article 41 of the Constitution of India lays down that the state shall,
within the limits of its economic capacity and development, make
effective provision for securing the right to education. Article 45, of the
Constitution of India provides that the state shall provide early childhood
care and compulsory education for all children until they complete the
age of six years. Article 46, of the Constitution of India requires the state
to promote with special care the educational and economic interests of
6 The Constitution of India, as amended by The Constitution (Ninety-eight Amendment) Act, 2012.
The Right to Education: A Case of Judicial Activism | 53
the weaker sections of the people, especially of the scheduled castes and
scheduled tribes and to protect them from social injustice and all forms of 7exploitation.
8 In Mohini Jain v. State of Karnataka, the government of Karnataka
issued a notification that the private medical colleges in the state of
Karnataka charge exorbitant tuition fees from the students admitted other
than 'government seat quota'. Mohini Jain, a medical aspirant student
filed a petition in Indian Supreme Court challenging this notification. The
question which was raised before the apex court: “whether right to
education is guaranteed to the Indian citizen under the Constitution of
India?”. The Supreme Court of India observed that mention of 'life and
personal liberty' in article 21 of the Constitution of India automatically
implies some other rights, those are necessary for the full development of
personality, though they are not enumerated in part III of the Constitution
of India. Education is one of such factors responsible for overall
development of an individual and therefore, right to education is
integrated in article 21 of the constitution.
Article 21
The right to education up to the age of fourteen years has been raised, 9
by the decision of the Supreme Court, in Unni Krishnan v. State of A.P.,
to the level of fundamental right. In this case, the Supreme Court 10confirmed the decision in Mohini Jain v. State of Karnataka – namely,
that the right to education flows from the right to life and obliges the state
to provide basic education to all citizens up to the age of 14. However, the
decision limited the right to higher levels of education, which is subject to
the economic capacity and development of the state. The court states:
We cannot believe that any state would say it need not
provide education to its people even within the limits of its
7 Uma, “Right to Education (RTE): A Critical Appraisal” 6(4) IOSR Journal Of Humanities And Social Science (2013).8 1992 AIR 1858.9 1993 AIR 2178; 1993 SCR (1) 594.10 Supra note 8.
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economic capacity and development. It goes without saying
that the limits of economic capacity are, ordinarily speaking,
matters within the subjective satisfaction of the state.
The right to education further means that a citizen has the right to call
upon the state to provide educational facilities to him within the limits of
its economic capacity and development. By saying so we are not
transferring article 41 from part IV to part III- we are merely relying upon
article 41 to illustrate the content of the right of the right to education
flowing from article 21.
Article 21A
th The Constitution (86 Amendment) Act, 2002 inserts new article 21
A in the Constitution to make right to education a fundamental. Article
21A makes education from the use of six to fourteen years old,
fundamental right, within the meaning of part III of the Constitution. It is 11
popularly known as “primary education.” The obligation of state to
provide education to the children above the age of fourteen years would 12still depend upon the economic capacity and development of the state.
Holding that the right to appear in class VIII Board examination was
another fact of the right to education guaranteed under article 21A,the 13
Patna High Court in Anil Kumar Roy Sharma v. State of Bihar, directed
the board to permit the students of a private school to appear in class VIII
board examination.
The term “child” for the purpose of article 21A is held to be a child
who is a citizen of India. The Kerala High Court in Zeeshan v. District 14
Education Ofcer, Kannur, upheld the denial of admission to standard V
in a school of a child who was a citizen of Pakistan, under section 22(ii) of 15the Kerala Education Act, 1959.
11 Right to Education Platform 2013, “Know your RTE>About”, available at: http://righttoeducation.in/know-your-rte/about (last visited on October 21, 2017).12 Narendra Kumar, The Constitutional Law of India, 166-167 (Allahabad Law
stAgency, Faridabad, 1 edn. 2009).13 AIR 2005 Pat. 38.14 AIR 2008 Ker. 226.15 Chandrika Prasad Yadav v. State of Bihar, (2009) 4 SCC 414.
The Right to Education: A Case of Judicial Activism | 55
16 Avinash Mehrotra v. Union of India & Others, arose out of a fire
that started in a middle-school in Kumbakonam, Tamil Nadu. The school,
a single thatched roof building with no windows and one entrance and
exit was a private school that was said to have 'sprung up in response to
drastic cuts in government spending on education'. The fire started in a
nearby makeshift kitchen where cooks were preparing a midday meal,
and killed ninety three children and injured many others. An instant writ
petition was filed under public interest litigation in order to protect school
children against similar future tragedies and to improve the conditions of
the schools in the country. The Supreme Court issued notices to the Union
of India, state governments and the union territories. Twenty-seven states
and union territories filed affidavits admitting that many schools did not
meet their self-determined safety standards (which were in any event
below the standards of the National Building Code of India, 2005).
The court decided that there is a fundamental right to receive
education free from fear of security and safety, and the right to education
incorporates the provision of safe schools pursuant to articles 21 and 21A
of the constitution. No matter where a family seeks to educate its children
(i.e., including private schools), the state must ensure that children suffer
no harm in exercising their fundamental right to education. State
governments and union territories were directed to ensure that schools
adhere to basic safety standards and that school buildings are safe and
secure according to the safety norms prescribed by the National Building
Code and affidavits of compliance were required to be filed by authorities
concerned. In interpreting the right to education Dalveer Bhandari J.
reasoned: "educating a child requires more than a teacher and a
blackboard, or a classroom and a book. The right to education requires
that a child studies in a quality school, and a quality school certainly
should pose no threat to a child's safety."
If we really want to help the society, educationally and economically
backward class, we need to focus earnestly on implementing article 21A
16 (2009) 6 SCC 398.
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of the constitution. Without article 21A the other fundamental rights are
effectively rendered meaningless. Education stands above other rights,
as one's ability to enforce one's fundamental rights flows from one's 17
education. Also there is a need of uniform education system would
achieve code of common culture.
V Right to Education Act, 2009
The Right of Children to Free and Compulsory Education Act or
Right to Education Act (hereinafter RTE Act), 2009, which describes the
modalities of the importance of free and compulsory education for
children between 6 and 14 in India under article 21A of the Constitution
of India. Education has also been made free for children for six to 18fourteen years of age or up to class VIII under the said Act. This Act
stcame into force on 1 April 2010. Bypassing this bill; India has joined the
league of over 130 countries which have legal guarantees to provide free
and compulsory education to children. The right to education of persons
with disabilities until eighteen years of age is laid down under a separate
legislation- the Persons with Disabilities Act. A number of other
provisions regarding improvement of school infrastructure, teacher-20student ratio and faculty are made in this Act.
The RTE Act, 2009 basically talks about the right that guarantees 21
every child of the age of 6 to14 be provided 8 years of free and
compulsory elementary education. It also makes the state bear any cost 22that prevents a child from accessing school. This is done so that, no child
shall be liable to pay any kind of fees or charges or expenses which may 23
stop the child to get education.
17 Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1. 18 Supra note 16.19 The Right of Children to Free and Compulsory Education Act, 2009, s. 3.20 Nithin Chowdary Pavuluri, “Provisions of Right to Education in India”, available at: http://www.jgu.edu.in/public/lac/pdf/RTE.pdf. (last visited on October 23 , 2017).21 Supra note 19 at s. 2(c).22 Manjusha Nitin Suryawanshi, “Constitution of India and the Right to Education” 5 Research Front (2015).23 The Right of Children to Free and Compulsory Education Act, 2009, available at: http://eco.du.ac.in/RTE%20-%20notified.pdf. (last visited on October 22, 2017).
The Right to Education: A Case of Judicial Activism | 57
Chapter III of the RTE Act, 2009 talks about the duties of state
government and local authorities. Section 6, which talks about the areas 24or limits of neighborhood within which a school should be established,
this is the duty allotted to the state government. Where it provides for a
school to be established within a walking distance of one km of the
neighborhood, for the children in classes' I-V, and for children in classes
VI-VIII, It is within a walking distance of three kilometres of the 25neighborhood.
The RTE Act also contains specific provisions for disadvantaged
groups, such as child laborers, migrant children, children with special
needs, or those who have a disadvantage owing to social, cultural, 26economic, geographical, linguistic, gender or any such factor. The Act
stresses on the point that children with disabilities should also be 27
educated in the regular mainstream schools. This Act not only limits to
government schools, but also to all private schools. It provides that all the
private schools should enroll children from weaker sections and
disadvantaged communities in their incoming class to the extent of 25%
of their enrolment, by simple random selection. The children admitted
through above reservation should be treated on par with all the other
children in the school. The state should subsidize the rate of average per 28
learner costs in the government schools.
The Act provides a three year period from the date of
commencement of the Act (i.e., three years from 1, April 2010) for
establishing a school where ever they are needed as by the provision of
the law. The appropriate government and the local authority are given this
duty. The central government is entitled to the following duties by the
Act:
(a) develop a framework of national curriculum with the help of
24 Supra note 19, s. 2(n).25 Supra note 23.26 Supra note 19, s.8 and 9.27 Ibid.28 Supra note 20.
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academic authority specified under section;
(b) develop and enforce standards for training of teachers;
(c) Provide technical support and resources to the state government for
promoting innovations, researches, planning and capacity 29
building.
The National Commission for Protection of Child Rights (NCPCR)
has been set up as a mandated authorities to monitor the implementation 30
of the right to education.
VI Conclusion
The importance of education cannot be denied. It sustains the human
values which contribute to the individual and collective well-being. It
forms the basis for lifelong learning and inspires confidence to face
challenges. It provides the skills to individuals to become more self
reliant and aware of right opportunities. It also enhances the ability of
individuals to act like more responsible and more informed citizens and
have a voice in politics and society, which is essential for sustaining
democracy. It is essential for eradicating poverty and it allows people to
be more productive and playing greater roles in economic life and
earning a better living. The education is the key which allows people to
move up in the world, seek better jobs, and ultimately succeed in their
lives. So education is very important, and no one should be deprived of it.
The importance of primary education has been neglected by India since
independence knowingly or unknowingly. However, government of
India now is willing to improve primary education by bringing legislation
i.e., right to education.
Though, there have various barriers to universal primary education
in a country like India but such obstructions may be removed by way of:
Encouraging girls and not only them but also their parents about the
significance of education.
29 Supra note 23.30 Id. at s.31.
The Right to Education: A Case of Judicial Activism | 59
Removing physical distance for the universalisation of elementary
education in a large country like India. Specifically in rural India,
there is an urgent requirement of availability of schools in nearby
areas (minimum one school for every village) for protecting the
initiatives to provide education to all.
Eradicating child labour from the society, many children basically
from below poverty line families are sent to work for earning money
to supplement family income. In this situation proper
implementation of law is inevitable.
Supervising to the educational establishments regarding
infrastructures, teaching aids, class rooms, toilets, drinking water
etc.
Taking strict actions for violation of such right to education by
concern authority.
Providing proper placements after completion of their education
may also encourage peoples about such issues.
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AADHAAR, A CATALYST TO
DOWNFALL OF PRIVACY*Shobhit Tiwari
**Faizan Mohd. Khan
Abstract
Today, every individual is in a dilemma, whether to accept Aadhaar, and the consequences following it, or not. The core issue upon which the Aadhaar is being opposed is 'privacy'. Inclusion of privacy as a fundamental right by the Supreme Court is remarkable with a nine judges' bench unanimously declaring it, has made this debate intense. This work deals with major ongoing proceedings and development in era of right to privacy of an individual and descriptively analyses the pros and cons of the scheme. We have covered the ideas or the arguments concerning the people from both sides of this controversial issue and also the problems which are faced by the common man as an outcome of this scheme. Emphasis has been laid upon the controversial aspect of Aadhaar which is 'use of biometrics' and all the possible repercussions flowing inclusion of such feature are dealt with. Looking in the global trends, different identification systems of countries are looked upon and compared with Aadhaar. Critically analyzing the whole issue, some major glitches involved with the application of this system are discussed and supported with claims which have been largely prevalent along with the usage of such identification systems.
I Introduction
AUGUST 24, 2017, will always be remembered as an epoch making
day in the history of Constitution of India and Indian judiciary. A
remarkable unanimous judgment rendered by the nine judges' bench of
Supreme Court headed by the then CJI J.S. Khehar. The bench comprised
of Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F.
Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S.
Abdul Nazeer. Six different judgments and still unanimity on the crucial 1
point of fundamental rights that:
* 3rd year student, B.A. LL.B, Dr. RMLNLU, Lucknow.** 3rd year student, B.A. LL.B, Dr. RMLNLU, Lucknow.1 Justice K. S. Puttaswamy (Retd.) v. Union of India. & Ors., 2017 S.C.C. Online S.C. 996.
Right to privacy is a fundamental right intrinsic under article
21 which includes right to life and personal liberty enshrined
under part III of our constitution. It is an inalienable right and
hence not a creation of Constitution itself. It is constitutional
core of human dignity. Privacy includes marriage, sexual
orientation, personal intimacies, sanctity of family lives,
procreation, etc. It is a right to be left alone. It is an important
feature of dignity of human beings. Any encroachment will
definitely lead to judicial scrutiny of the acts of state to check
whether they follow procedure established by law.
The judgment expressly overrules the judgment given by Supreme 2Court in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of
3U.P., where eight judges' bench and six judges' bench respectively held
that right to privacy is not a fundamental right; and A.D.M. Jabalpur v. 4
Shivkant Shukla, where majority held that article 21 can be suspended
during emergency. Not only this, the judgment will potentially go on to 5 6challenge the decision in Naz Foundation case and Aadhaar case.
Interestingly, the motive of Aadhaar is somehow fabricated with the very
idea of right to privacy.
Many petitions are being filed against Aadhaar (Targeted Delivery
of Financial and other Subsidies, Benefits and Services) Act, 2016. One
of the major issues is the collection of biometric data is violative of right 7to privacy intrinsically present under right to life and personal liberty of
our constitution. Now, let us see what is an Aadhaar card. Aadhaar card
consists of tweleve digits random no. giving a unique identity to Indian
citizen. The card acts as a national identity card which is being issued by
Unique Identification Development Authority of India, whereby enroller
has to provide his biometric data which includes fingerprints, iris scans
2 1954 S.C. 300.3 A.I.R. 1962 S.C. 1295.4 A.I.R. 1976 S.C. 1207.5 Suresh Kr. Kaushal v. Naz Foundation, 160 D.L.T. 277.6 Supra note 1.7 Constitution of India, art. 21.
62 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
8and facial photograph as well as his demographic data including name, 9date of birth, address, etc. It is said to be the unique and resilient way to
curb fake identities, corruption and bring in transparency and
accountability. The scheme also provides a basis for availing various
government schemes and programs for effective delivery of benefits
without any leakages in the system. Aadhaar card is devoid of classifying
people as it does not categorize people on the basis of their caste, religion,
race, tribe, ethnicity, and language, record of entitlement, income or 10
medical history. It is the key player for government of India's 'Digital
India' initiative and a strategic policy tool for managing financial
budgets, curbing corruption, ushering in transparency within the
government and financial inclusion of underprivileged sections of the
society. It acts as a bridge for government to reach out and provide
various benefits, subsidies and services to citizens.
The project, basically, without a doubt, is a very bright and splendid
step taken by government of India but the way it is being implemented,
some provisions of Aadhaar Act, 2016, and government's plan to make it
mandatory is causing a lot of dissent in the public arena. Especially,
questions regarding the right to privacy of Indian citizens. Now the
judgment of nine judges' bench formulated for deciding about the stand
of right to privacy in Constitution of India has already been kept on a
conclusive remark. The plights of common people will depend upon the
decision of the five judges' bench in Aadhaar case (which is still pending)
which is going to play a huge role in the implementation of Aadhaar
scheme as supported by the government of India vis- a- vis right to
privacy of Indian citizens.
II Historical background
The very inception of Aadhaar card can be dated back to the year
1999 after we won Kargil war against Pakistan. A review committee
8 Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, s. 2(g). 9 Ibid. 10 Ibid.
Aadhaar, A Catalyst to Downfall of Privacy | 63
under the leadership of then security analyst K. Subramaniam was
formulated by the name Kargil Review Committee, this committee
recommended issuing of identity cards to the villagers residing near the
border regions. The committee's recommendations were analyzed and 11
accepted by Group of Ministers headed by Mr. L. K. Advani in 2001.
Later in 2003, the Citizenship (Amendment) Bill, 2003 was
introduced by Mr. L. K. Advani which put in place a clause for
compulsory registration of Indian citizens by issuing a national identity
card. A multipurpose National Identity Card was issued to discourage
illegal immigrants and enhance national security. With the change in
government, the process to issue a national identity card took gear. UPA
government ushers in Unique Identification Development Authority of
India under a notification of Planning Commission of India. Nandan
Nilekani, co-founder of Infosys, was appointed as the Chairman of this
resplendent project. In 2010, UIDAI launched the logo and the name as
AADHAAR or BASE in Hindi. In 2012, Aadhaar online verification
system was introduced to check the validity of the Aadhaar card holder.
Since then, Aadhaar is continued to be linked with various benefits,
subsidies and services, etc to check leakages as well as to curb corruption
by bringing in transparency in governance.
Initially, BJP-led NDA government was against Aadhaar being
violative of right to privacy of Indian citizens but after the meeting of
Nandan Nilekani and PM Narendra Modi, the government changed its
stance in support of Aadhaar. Now, NDA government is trying to make
Aadhaar card mandatory for every citizen of India such that they can
enroll themselves for government benefits, subsidies and services. At this
point of time, Aadhaar becomes world's largest project of registration of
citizens by any country with almost 1.17 billion citizens already
registered themselves. Though making it mandatory for every citizen
such that they can avail the benefits provided by the government to them
11 Aadhar Card Guru, "History Outline of Aadhar – How It Comes into Existence," Aadhar Card, available at: https://aadharcard.in/aadhar-histroy. (last visited August 27, 2017).
64 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
is making this whole sensible grand plan a total failure, as our
Constitution provided for personal liberty under article 21 and it includes
privacy as well. The decision to enroll for Aadhaar scheme must reside
with citizens and not the government. Promotion of a national identity
card in addition to facilitation of various benefits, subsidies and services
directly to the citizens is indeed a magnificent step. But the reticence of
government of India and Aadhaar Act on privacy issues and their
cognition as to why making it mandatory, undeniably, is causing huge
dissent among masses. At present, number of petitions have been filed
against various provisions of Aadhaar Act which is being analyzed by the
five judges' bench of Supreme Court under the case name as Justice K.S. 12Puttaswamy (Retd.) v. U.O.I. & others. After the beaconing judgment
that right to privacy is a fundamental right of our Constitution which was
unanimously rendered by the nine judges' bench of Supreme Court, now
all eyes are on the five judges' bench of Supreme Court which is
constituted to decide the Aadhaar case.
Right to privacy
Constituent Assembly while drafting the Constitution of India
nowhere used the word 'privacy', for once. This is the most precarious
argument put forth in cases by the side standing against right to privacy in
India. For them, if constitutional drafters were of the view that Indian
citizens have right to privacy, they should have mentioned it
unequivocally. As a result, Indian judiciary since 1954 is trying to decide
as to where right to privacy stands vis- a- vis the Constitution of India.
The first case came up as early as in 1954 in M.P. Sharma v. Satish 13
Chandra. The issue was related to the fact that search and seizure of 14
documents were violative of right to property (no longer a fundamental 15right) and right against self-incrimination of the Constitution of India.
The eight judges' bench held that protection of social security is regulated
12 Supra note 1.13 Supra note 2.14 Supra note 7 at art. 19(1)(f).15 Supra note 7 at art. 20(3).
Aadhaar, A Catalyst to Downfall of Privacy | 65
by law which provides an overriding power to state of search and seizure.
Drafters of the Constitution, if thought it fit, would have made a provision
by recognition of right to privacy as fundamental right to barricade the
power of state. But it is not the case and therefore, right to privacy cannot
be considered as fundamental right.
16 In Kharak Singh v. State of U.P., petitioner was a dacoit and filed a
writ petition against power of police surveillance which allowed home
visits at nights, tracking every move of Kharak Singh, etc. The six judges'
bench of Supreme Court ruled in favor of respondent while saying that
right to privacy is not a fundamental right. But minority opinion of Subba
Rao J. can be taken into account where he said that it is veracious that
right to privacy is not explicit in the Constitution of India but it is an 17intrinsic part of right to life and personal liberty of the Constitution of
India.
18 In Gobind v. State of M.P., the Supreme Court of India upheld the
19fact that right to privacy is a part of right to life and personal liberty
under the Constitution of India. But this right is not the absolute one as it
can be overshadowed by procedure established by law.
20 In R. Rajagopal v. State of T.N., the apex court held that right to
privacy is nothing but 'a right to be left alone' and right to privacy is
implicit in articles 19(1) and 21 of our Constitution. Right to privacy can
also be attributed to a prisoner in his private matter which he didn't want
anyone to invade or took notice of.
21 In P.U.C.L. v. U.O.I., the apex court held that individuals have a
right to privacy concerning their private conversations on telephone and
arbitrary tapping of telephones hinder their very fundamental right
intrinsic under article 21 of our constitution. But the notion, mindset and
vision of people of India changed after the landmark judgment of Justice 16 Supra note 3.17 Supra note 5.18 (1975) 2 S.C.C. 148.19 Supra note 5.20 (1994) 6 S.C.C. 632. 21 (1997) 1 SCC 301.
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22K.S. Puttaswamy (Retd.) v. U.O.I. in which the nine judges' bench of
Supreme Court unanimously held that right to privacy is a fundamental
right and is ingrained in article 21 of part III of Constitution of India.
Thus, a 547-pages' judgment not only overruled previous larger bench
judgment of M.P. Sharma and Kharak Singh cases but its reverberation is
definitely going to echo in different cases where right to privacy is being
neglected upon. The previous versions of right to privacy in earlier cases
are vague as judges portrayed the shattered dimensions of 'privacy'. The
judgment not only declare right to privacy as a fundamental right of
Constitution of India but also in doing so widens its scope to embrace in
its ambit the cases like Aadhaar, homosexuality, suspension of 23fundamental rights like article 21 during emergency, etc. Thus, at
present, right to privacy can be regarded as a fundamental right enshrined
under part III of the Constitution.
III Global trends regarding national identity card
With 1.17 billion population already enrolled, Aadhaar has become
world's biggest National Identity Program. Government is trying to
encapsulate within its ambit everything through which any individual
necessities are attached. The cohesion of various benefits, subsidies and
services are not the point of contention in Aadhaar scheme but the
collection of biometric data is. As a result, the clutches of state
intervention has increased in cases of breach of the privacy of the
citizens. For an instance, for making a transaction of Rs. 50,000 and
above you will require Aadhaar and this is your last resort. Already, the
compulsion to add Aadhaar details to bank accounts by last date of this 24
year has been put forward by the government. Therefore, the citizens are
basically forced to avail the benefits of Aadhaar which is transgression on
22 Supra note 1.23 Ibid.24 ENS Economic Bureau, “Aadhaar must for Bank Accounts, Transactions over Rs 50,000” The Indian Express, available at: http://indianexpress.com/article/business/economy/aadhaar-must-for-bank-accounts-transactions-over-rs-50000-supreme-court-4707454/ (last visited on August 27, 2017).
Aadhaar, A Catalyst to Downfall of Privacy | 67
liberty as well as privacy of the individual citizen. This is the case with
India. On comparing our unique identification system with the other
identification systems of the world; we will get to know the depth of
trouble we might get in future which will be followed by the insecurity of
our privacy.
Looking at the most powerful states and their identification systems,
the first country which gets highlighted (as an idol) is the United States of
America. It is in the talks that Aadhaar should be totally accepted as it is
similar to the Social Security Number (SSN) used in USA, but practically
America's SSN stands on a different stone than India's Aadhaar project.
In fact, both differ to a great extent. In understanding these differences,
authentication is one important aspect. Aadhaar analyses the
demographics of an individual with which the records are pre-stored in its
database, this according to the government will prove to be a game
changer when the issue is of identity fraud. On other hand the SSN was
not developed to meet the needs of authentication and that too at national
level. Only in specific cases it requires authentication. The most
controversial aspect of Aadhaar “the biometrics” is also absent in case of
SSN. In 1930's, the American government felt the need to limit the
system by not including biometrics, which involves collecting the
fingerprints which prima-facie shoot the idea of criminal activity in
minds of people. Periodically a reform was expected in fields of
immigration and for that BELIEVE card (biometric enrolment) was
introduced, which locally started information and electronic verification
of employment but no considerable development was observed
afterwards, and scheme lost its relevance with time.
Seeding is again one alarming issue, talking of Aadhaar, the 12 digit
number is multiply seeded in many databases by the government which
made the private enrollers responsible for the task initially, reflecting its
lack of concern for handling the information again emphasizing on the
profiling issue. No process involving seeding is used operating the SSN;
instead the government in America has cautioned the authorities and
individuals about the usage of SSN as unique identifier and appeals them
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for using a number of different cards associated with their respective 25 fields.
The government of USA has provided safeguards for its SSN
through the Social Security Act of 1935. The system of Aadhaar has been
functioning in absence of a legal configuration for almost seven years
since its inception. It is clear from the analysis above that Aadhaar and
SSN are two very different systems which work differently owing to their
applications. There are people who cannot find the dissimilarity between
the two and these are the same people who lay path for compulsion of
linking Aadhaar to all the fields by quoting the fact that USA uses a
similar system of identification, which in fact is vague in its entirety.
It has been high time, government of India should learn from the
mistakes of the most developed and sophisticated nation as Aadhaar was
designed in order to be used by private entities but the SSN was not but
when the same was used by private entities and the repercussions were
not pleasing, it lead to the increase in identity theft on a great scale. When
countries like America having the most sophisticated technology and a
limited population was not able to keep a check on these glitches how can
we expect success with such system in a nation with second largest
population, and limited resources. “A biometric identifier such as finger
print can be an effective and highly accurate way to establish the identity
of an individual but it can also facilitate much higher degree of tracking 26and profiling than would be appropriate for many transactions”.
USA one of the most developed and powerful country. Therefore,
USA acts as a role model for other countries to follow. Further,
comparing and looking into the identification systems of the different
countries, Brazil, Indonesia and Malaysia are found to be comparable
25 Jayesh Shinde, “Govt. Makes Aadhaar A Must For Opening Bank Accounts. Here's How To Secure Its Leaky database”, available at: http://www.indiatimes.com/technology/news/how-does-aadhaar-compare-with-other-id-systems-in-the-world-how-to-secure-its-leaky-database-276972.html (last visited on August 30, 2017). 26 Marc Rotenberg, President, Electronic Information Centre.
Aadhaar, A Catalyst to Downfall of Privacy | 69
keeping up with the Aadhaar issue. Since 1980's Brazil was of view that a
unified identification card program should be worked upon which will
prove to be a step beyond other developed nations. So the model of
ABRID emerged, it association of digital identification technology
companies or in other words, Brazilian genre of Aadhaar. The Brazilian
government did not make it compulsory by law but it is necessary in
practice, which sounds a bit awkward. Along with providing a proof of
citizenship, biometric banking was the major issue encompassing the
development of ABRID. Whenever there is use of biometric data there
are serious chances of fraud and thereby breach to 'privacy' cases.
Moreover, Aadhaar does not serve as a proof of citizenship as Brazilian
ABRID but both are similar in a way that they collaborate with private
agencies to collect Biometric data of their respective citizens when they
are still dawdling behind in technological advancements.
In Indonesia, the card in use is Karta Tanda Panduduk (KTP),
basically a combination of identification features taken from India and
China involving Biometrics with only a difference in which only two of
the fingerprints are cached on the chip-card (although in database 10
fingerprints) the residents require eKTP (smart form) for availing various
services like health care programs, banking and telecom. The functioning
is smooth and no major flaw has made to the surface but again, it is in
transitional period so no strong conclusions can be drawn yet.
Furthermore, Malaysia possesses one of the most sophisticated and
advanced identification systems in the world, as in 2001 only it was the
first nation to introduce biometrics combined with the photograph 27
embedded in a chip-card system. There are many features but the
flashiest one of all is that the citizens who opt for MyKAD card (unique
card) have freedom of choosing the applications of this card, which
makes it crystal clear, that the government respects the consent of its
citizens. It is the people who choose and add services to which MyKAD
card will be utilized. The absence of this feature in our system insults the
importance of consent and weakens the principles of liberty of
27 Supra note 26.
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individuals as enshrined in our constitution. The use of biometrics
mechanism is highly questionable and also it is a rarely used mechanism
around the globe mainly owing to the factors of data insecurity and cyber
threats. Mere statement by the UIDAI (about central database being
adequately secured) and other concerned authorities (on central database
being adequately secured) is not going to change these proposed threats
to privacy of an individual. In other countries the situation is different
with controlled population and swift administration but with India
whether the choice can be offered to citizens for applications of Aadhaar,
will be a very difficult question to answer. Aadhaar scheme is still in
progress and government, in this point of time, will have to work to
enhance the data protection of the information they had collected to make
it a foolproof scheme.
IV Flawed arguments put forth by government of India against right to privacy in Aadhaar case
Argument 1 – In M.P. Sharma and Kharak Singh cases the eight
judges' and six judges' benches respectively declined that right to privacy 28
is a fundamental right under the Constitution of India.
First of all, the nine judges' bench already decided that right to
privacy is an intrinsic part of article 21 of the Constitution of India and
thus overruled the judgments given by the Indian Supreme Court in the
two cases. The argument of government of India is flawed in the manner
that the Supreme Court benches in both cases did not thoroughly reflected
upon the issue of privacy as the main question were at altogether
different. Thus it can be said that what the benches said in their judgments
in the two cases does not form the ratio decidendi of the case and hence
not binding to any subsequent smaller benches.
Argument 2 - Supreme Court did not restrain UIDAI to carry on the
collection of biometric data for the purpose of Aadhaar Card. Already,
UIDAI has issued Aadhaar Cards to almost 90% of Indian population and
28 Supra note 5
Aadhaar, A Catalyst to Downfall of Privacy | 71
thus the money spent on the scheme would definitely has a negative 29effect.
The biometric data is very fragile and private information of an
individual. Supreme Court in its recent judgment on right to privacy 30
explained 'privacy' per se and made it a fundamental right. Hence,
collection of biometric data is in itself a violation of right to privacy until
and unless given voluntarily by the individual. The cases like Mahendra 31Singh Dhoni's Aadhaar information being leaked online, Jharkhand
Directorate of Social Security's leakage of critical private information of
millions of citizens including bank account details and Aadhaar 32
numbers, etc. will make it a more serious breach of privacy. Even the
Aadhaar Act doesn't provide for any provision for redressal of the breach
to an individual. It is upto the discretion of UIDAI whether to make an
FIR of the breach or not. Therefore, being an intrinsic part of right to life 33
and personal liberty, Right to privacy of an individual is much more
important for a state to protect rather than loitering about the money
spent. It is absolutely true that a huge amount of money is already being
spent upon collection, registration and issuance of Aadhaar Card to
Indian population but the point of clash is the fact that right to privacy
being a fundamental right will always overshadow its encroachment
even if it involves huge lots of money.
Argument 3–Aadhaar Scheme is an effective source of various
social benefits like MGNREGA, PDS system, LPG subsidies, etc. 34Therefore, it should be allowed to its full utility.
29 Supra note 5.30 Ibid. 31 HT Correspondent, “MS Dhoni'sAadhaar details leaked, wife Sakshi complains to Ravi Shankar Prasad”, available at: http://www.hindustantimes.com/cricket/ms-dhoni-s-personal-info-from-aadhar-card-form-leaked-wife-sakshi-complains/story-8M4B7ZabHIu8cAcWhKuIzH.html (last visited on August 27, 2017).32 The Quint, “Shocking Data Breach: Aadhaar Details of Over a Million Leaked”, The Quint, available at: https://www.thequint.com/india/2017/04/23/shocking-data-breach-million-aadhaar-number-details-leaked-online-jharkhand-directorate-of-social-security (last visited on August 27, 2017).33 Supra note 5.34 Ibid.
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There is no doubt that the linking Aadhaar to these benefits,
subsidies and services, government is keen to check leakages and
corruption and wants to allow underprivileged and middle-class to fully
enjoy the benefits. It will lead to accountability and transparency in
governance. But the duplication of biometrics will change this fertile
argument to a barren one. It is scientifically proven that fingerprints can
easily be duplicated using various products like silicon gel which enable
you to form a fake fingerprint or copy anybody's fingerprints like what 35
happened in ICT College Mumbai's fake fingerprinting case. Also, what
about Persons with Disabilities; and who lost their fingerprints due to
hard daily manual labour; or who lost their eyesight due to cataract or
some another eye disease affecting iris? Are there any provisions for
them to avail these benefits as they lack their biometric data? So, plainly,
there will be few cases of such kinds then what steps do UIDAI will take
as it is up to UIDAI itself to lodge an FIR if it deemed necessary and not
the individual who is being conned.
Argument 4–Right to privacy does not lie as India is a developing
economy where millions of people cannot avail even basic necessities of 36life like food, shelter, clothing, etc.
This is an erroneous argument. Right to privacy cannot be accorded
to a person by categorizing people on the basis of rich and poor. Instead, it
is the basic facet of life and personal liberty of a person and a sacrosanct
right of an individual. World is changing and so is poor. With the
digitalized world, poor people are also becoming well aware of their
fundamental rights and also how to embrace and protect them from any
obtrusion. Without putting such an argument government can, rather,
work to provide these underprivileged people with certain benefits,
subsidies and services while helping them sustain their right to privacy.
35 Musab Qazi, “You will be glued to this: Mumbai college's students trick biometric system”, available at: http://www.hindustantimes.com/mumbai-news/you-will-be-glued-to-this-mumbai-college-s-students-trick-biometric-system/story-W64f1jdMtecxKDml2DakeI.html (last visited on August 27, 2017). 36 Ashutosh Bhardwaj, “Govt. Backs Privacy Right But Said Opposite in Court” Indian Express, Aug. 24, 2017.
Aadhaar, A Catalyst to Downfall of Privacy | 73
Argument 5 – Constituent Assembly debates are proof that our
constitutional drafters did not intend to add right to privacy as a 37fundamental right in our constitution.
Once again, Supreme Court in its various landmark judgments has
already added new definition, interpretation and dimensions to part III of
our constitution. For example, the basic purpose of various constitutional
amendments enshrined, portrays that constitution is not a complex rigid
document. The intention is that the 'Basic Structure' of constitution
should not be changed. Hence, law will evolve within its time and space.
The basic Constitution was not the same as what it is nowadays. This is
happened because time is changing and “law is always ought to be”.
Therefore, maybe the constituent assembly debates didn't involve right to
privacy but the debates are also tight-lipped on the issue of whether or not
new angles can be added or interpreted by the Indian judiciary on case by
case as well as time basis. Silence is actually good so that with changing
time the laws can also be evolved.
Argument 6 – Most of the citizens have already given their biometric
as well as demographic information to UIDAI and therefore it is futile to 38argue their Right to privacy is being hindered by.
It is absolutely true that most of the Indians have already parted their
information to enroll for Aadhaar. But legislators should keep in mind the
preparatory steps and decisive repercussions of a particular legal
enactment. The purpose of legislation will not determine whether the
fundamental rights are intrinsic or extrinsic to that particular enactment.
Hence, it puts the onus on government itself to come up with a stringent
data protection laws which assist Indians to protect their fundamental
right of privacy with more precision. Here, government already has
constituted a Data Protection Review Committee under the chairmanship
of retired judge of Supreme Court of India, Justice B.N. Shrikrishna.
Committee will obviously get a lot of assistance by the landmark
37 Supra note 37.38 Ibid.
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judgment of Supreme Court of right to privacy being a fundamental right.
V Critical analysis: Aadhaar Act vis- a- vis right to privacy
Aadhaar scheme is unable to live up with the multitudinous of
promises it delineated. A unique identity which enables Indians to
distinguish themselves with others; an identity to avail various benefits of
number of social schemes for downtrodden or underprivileged sections
of the society; an identity to curb corruption and leakages and
shepherding transparency and accountability in the governance. At this
point of time, the voices against implementation of Aadhaar raised
significantly. The only point of clash between government and masses is
Aadhaar's lack of any rigorous data protection laws to protect privacy of
citizens. Right to privacy is now being recognized as a fundamental right
which in turn makes it more inflammable counter narrative of masses
against the government.
The gathering of biometric data is causing a lot of demur among
citizens as they are afraid of the consequences they will have to face if
their pivotal and private information are being compromised by a
criminal, miscreant or even government. Few analysts see the scheme as
a weapon in the arsenal of government for its mass surveillance project. A
project which is to get hold of the individual whereabouts without him
knowing nothing about the same usually for sake of national security. 39There is a provision also in the Aadhaar Act where an individual privacy
can be compromised in the interest of national security. The provision is
in public interest, public welfare and obviously national security. But
government can access data repository at any point of time to look into
the private life of an individual taking this provision as an unreasonable
medium to transcend the boundaries they are not bound to.
Lack of stringent data protection laws is causing a huge lot of trouble
for Indian citizens. Initially, citizens were in dire state as to how they are
going to protect their privacy when the constitution is silent about it. But,
39 Supra note 8.
Aadhaar, A Catalyst to Downfall of Privacy | 75
the milestone judgment given by the nine judges' bench of Indian
Supreme Court created a milieu of relief that now we have a strong
argument to put forth in Supreme Court against Aadhaar's hindrance to
our privacy. Government of India was not at fault thoroughly. Since,
government formulated Srikrishna Committee to review Data protection
laws vis- a- vis Aadhaar and other similar schemes and to provide
recommendations as soon as possible. Instead waiting for the
recommendations by the Committee, government is still constantly
moving on with the Aadhaar scheme. As the Committee is still under the
umbrella of researching and reviewing, it is viable step to take a pause in
making Aadhaar mandatory as well as adding different benefits,
subsidies and services to Aadhaar. It will in turn make the echoing voices
against the Aadhaar to revert back and sustain for the time, the committee
come up with its recommendations and government come up with data
protection legislation.
Aadhaar Act is also in need to be alter a little bit so as to include the
faculties for providing citizens assurance that the private information
which they have provided to the government is not in a dangerous state of
leaking through different mediums and premiering their private life in
open. Government has to come up with a provision under which it can
make UIDAI responsible for all the unwanted breaches of privacy cases.
In addition, UIDAI needs to take a stance in every possible cases arising
out of data breaches which the authority previously denied completely at
a public domain.
The UIDAI assures us that the security measures for protection of
technical data are efficient, but reality doesn't go hand in hand. In
Jharkhand, certain private and sensitive information including Aadhaar 40number were leaked out to the public sphere. The Centre for Internet and
Society claimed as many as 130 million Aadhaar card holders'
information was leaked from four websites of the government itself, a
40 Supra note 30.
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41claim refused by UIDAI. Around same time, about 200 websites of the
central and state government departments were reported to have
displayed personal details and Aadhaar numbers of many beneficiaries.
The UIDAI removed the details and the government pronounced that the 42
leak was not the result of breach of its servers.
It was brought out that ticket booking server of Indian railways had
been hacked and personal information of around 10 million customers
was expected to have been stolen from the servers of the portal. It was
reported that Indian Railways Catering and Tourism Corporation
officials also feared that personal details including date of birth, cell
numbers and other such details of its customers had been sold on a CD.
The IRCTC denied that their website had been hacked, and also
maintained that they had not confronted any indication that a data breach 43
had taken place. In between these denials and allegations it is the
personal information of the individuals which is at stake. Law is there to
protect Aadhaar but the implementation of same is questionable, storing
and publishing of the UID numbers and other information provided by
Aadhaar is punishable in chapter VII of Aadhaar Act. Later when
Aadhaar scandal was out and several state authorities and central
departments were found violating provisions of the Act: The UIDAI has
not initiated a single complaint against any of the bodies. It is only UIDAI
which has the power to initiate proceedings against the wrongdoer and 44not the individual who has been deceived.
The concept of Aadhaar can be understood with an easy example.
The right to information is there to make a government and its working
41 India Today Tech, "Aadhaar data of 130 millions leaked from govt websites: Report, Aadhaar data of 130 millions leaked from govt websites: Report: News", available at: http://indiatoday.intoday.in/technology/story/aadhaar-data-of-130-millions-bank-account-details-leaked-from-govt-websites-report/1/943632.html (last visited on August 28, 2017). 42 “Right to Privacy: Here's a Look at Four Major Data Breaches Since 2016”, NEWS18 available at: http://www.news18.com/news/india/right-to-privacy-four-major-data-breaches-since-2016-1499865.html (last visited on August 29, 2017). 43 Ibid.44 Supra note 8.
Aadhaar, A Catalyst to Downfall of Privacy | 77
transparent to people, in same way Aadhaar is there to make people
transparent to the government which is against individual's privacy.
Many people are not comfortable in sharing their personal and sensitive
information whether it is health or financial condition with people or
different organizations; he or she may be rich or poor but has some
private boundaries which are not to be breached. To counter this flaw, the
Attorney General in the Supreme Court argued that Indians do not care
about privacy, regularly we find people travelling in trains sharing their
life histories. A major issue of consent and dissent is grossly neglected in
this vague argument. Publishing one's health condition's report could
cause social discomfort and self-consciousness. “An unauthorized
parting of the medical records of an individual which have been furnished
to a hospital will amount to an invasion of privacy,” the Supreme Court
said, qualifying its position, however, by saying that if such records are
collected by the state preserving the anonymity of individuals, “it could
legitimately assert a valid state interest in the preservation of public
health to design appropriate policy interventions on the basis of the data 45available to it”.
While dealing with the case of beef trading in one of the instances,
the court has made it clear that “privacy enables the individual to have a
choice of preferences on various facets of life including what and how
one will eat, the way one will dress, the faith one will espouse and a
myriad other matters on which autonomy and self-determination require 46a choice to be made within the privacy of the mind”. In order to obtain
the benefits of technological advancements in myriad of different fields
of our lives, we have already submitted our privacy to a great extent and
in our anxiety to advance to even greater levels, whether we will
surrender whatever is left of our liberty and whatever little are left of the
privacy we enjoy? The future depends on this question.
45 Krishn Kaushik, Ravish Tiwari, “A to Z of Privacy” The Indian Express, Aug. 29, 2017. 46 Ibid.
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VI Conclusion
Right to privacy can be said as a right given to the Indian citizens by
the Indian citizens themselves. It is a fundamental and natural human
right since time immemorial. Making it explicit is just a connotation of
right to life and personal liberty enshrined under article 21 of the
Constitution of India. The landmark judgment of the nine judges' bench
of Supreme Court will no doubt have a series of significant effects on the
Indian perception of privacy. Aadhaar does form the base of
identification of Indian citizens in a unique way, so that they can be
distinguished from one another. The result which is being attempted to be
achieved by the government of India through Aadhaar scheme is also
remarkable but in doing so the government has to put a restrain upon
itself. Collection of biometric data which can be duplicated easily would
have its own dangerous results. The collection, in itself, is threatening the
very privacy of an ordinary citizen. It is becoming a way of mass
surveillance of Indian citizens by government of India. News reported in
different parts of India of leaking of private information on government
websites of Aadhaar card holders pinpoint to the fact that India is still
lagging behind the specifics of digitalization, a country still a mile away
from better technologies and stringent laws for data protection. In this
scenario, government has two options to choose, either to opt for doing
away with the Aadhaar scheme or formulating strong and stringent laws
for data protection to enable swift running and implementation of
Aadhaar scheme.
Aadhaar, A Catalyst to Downfall of Privacy | 79
NEED OF RIGHT TO PROPERTY TO BE
RECONSIDERED BACK AS
A FUNDAMENTAL RIGHT*Yash Tandon
Abstract
Right to property was a fundamental right until the 44th amendment to the Constitution of India, from which it became the constitutional right and came under article 300A. Earlier right to property was a three-fold fundamental right under article 19(1) (f), article 31 (1) and article 31(2), but the 44th amendment came as a death knell for the right to property and both article 19(1) (f) and 31 were as a result deleted. The statement of objects and reason given by the legislature to the 44th amendment that considering that the fundamental rights are to be treated as almost sacred and any trifling with them is bound to create furore, and sought that it would be easier to demote it to the constitutional right as right to property is from the state of nature described by John Locke in his “Second Treatise of Government” and so it has become the object of controversy from time immemorial. But as right to property is from the period of Locke's state of nature it is regarded as one of the most important rights and that's why it was not completely deleted from the constitution. Right to property came with exceptions but that exceptions were mostly in the favour of the people which will be dealt in detail in this research paper and that's gives this right a special status, and that status in this research paper is of “implied fundamental right”
I Introduction
THE CONSTITUTION of India does not perceive property as a
great essential right. In the year 1977, the 44th amendment wiped out the
right to get, hold and discard property as a fundamental right. Be that as it
may, in another piece of the Constitution of India, article, 300A, was
embedded to certify that no individual should be denied of his property
spare by expert of law. The outcome is that the right to property as a
crucial right is presently substituted as a statutory right. The correction
extended the energy of the state to a suitable property for social welfare
purposes. This is one of the exemplary illustrations when the law has
been distorted so as to influence loot to look just and consecrated to
numerous still, small voices. Indian encounters and origination of
* nd 2 year student, B.A. LL.B., Tamil Nadu National Law School, Tiruchirappalli.
property and riches have an altogether different recorded premise than
that of western nations. The reality is the present arrangement of property
as we probably are aware emerges out of the curious advancements in
Europe in the seventeenth and eighteenth centuries and in this way its
encounters were all around not relevant. A still more financial range in
which the answer is both troublesome and essential is the meaning of
property rights. The idea of property as it has created over hundreds of
years and it has exemplified in our lawful codes, has to turn out to be so
much a piece of us that we tend to underestimate it, and neglect to
perceive the degree of which exactly what constitutes property and what
rights the responsibility for presents are intricate social manifestations 1instead of plainly obvious recommendations.
This is by all accounts the shrouded motivation behind why the right
to property is abruptly much challenged all through India today and why
the state is coming up out of the blue against gigantic protection from
sudden quarters in endeavouring to get arrive in India. The activity of the
state to affirm the eminent domain over backup asserts on the property
and the conflict which came about there from Singur, Nandigram and
different parts of India is unequivocally an indication of a conflict of
societies. To put in Samuel Huntington's words, the thoughts of the west
of improvement and advancement engendered by the present decision
first class and the old Indic thoughts which shape the perspectives of most 2of the general population.
The right to property under the Constitution of India attempted to
approach the topic of how to handle property and weights identifying
with it by endeavouring to adjust the right to property with the right to pay
for its securing through a flat out central ideal to property and afterward
adjusting the same with sensible limitations and including a further
essential right of remuneration in the event that the properties are gained
by the state. This was exemplified by article 19(1) (f), adjusted by article
19(5), what is more, the remuneration article in article 31. This was an
1 Milton Friedman, Capitalism and Freedom 45 (University of Chicago Publications, Chicago, 1962). 2 Samuel P. Huntington, Class of Civilization 33 (Simon & Schuster, NYC, 1996).
Need of Right to Property to be reconsidered back as a Fundamental Right | 81
intriguing advancement impacted by the British. Notwithstanding, when
the state understood that an outright property and the goals of the
individuals were not the same the governing body was along these lines
compelled to make the said right to property subject to social welfare in
the midst of changes to the Constitution of India. Articles 31-A, 31-B and
31-C, are the pointers of the change and the counter weight of the state
when it understood the inalienable issues in conceding an unmistakable
western style total essential appropriate to property (despite the fact that
it was adjusted by sensible limitations in the enthusiasm of general
society), exceptionally article 31-C, which out of the blue drew out the
social nature of property. It is another issue that the said arrangements
were abused, and what we are examining today, however, the
manhandling of the communist state in India is not the extension of the
present article and the articles are considered all over esteem as it were.
Every government has a right to take and appropriate the private
property belonging to individual citizen for public use. This power is
known as eminent domain. It is the offspring of political necessity. This
right rests upon the above said two maxims. Thus, property may be
needed and acquired under this power for government office, libraries,
slum clearance projects, public schools, parks, hospitals, highways, 3
telephone lines, colleges, universities, dams, drainages etc. The activity
of such power has been perceived in the statute of every single socialized 4nation as adapted by open need and instalment of remuneration.
However, this power is liable to limitations gave in the constitution.
In the United States of America, there are constraints on the energy of
eminent domain-
a) There must be a law approving the taking of property;
b) Property is taken for open utilize;
c) Remuneration ought to be paid for the property taken.
3 V.N.Shukla, The Constitution of India 144 (Eastern Book Company, Lucknow, th11 edn., 1969).
4 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
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II Meaning of property under the Constitution of India
The word ‘property’ as utilized as a part of article 31, the Supreme
Court has said it ought to be given liberal significance and ought to be
stretched out to everyone of those all around perceived sorts of intrigue 5
which have the badge or normal for property right. It includes both 6 7corporeal and incorporeal right. It includes money, contract, interest in
property e.g., interest of an allottee, licensees, mortgages or lessees of 8property. The Mahantship of a Hindu temple, and shareholders of
9interests in the company are recognizable interest in property. The right
10to receive pension is property. This describes the wide ambit of property
which is enunciated in various judgements of the hon'ble Supreme Court.
III Interpretation of right to property by the Indian Supreme
Court pre-1978 and post 1978 respectively
The primary loss of Nehru's energy was simply the Constitution of
India. The first amendment to the Constitution of India in 1951 added
article 31A (1), and 31B. The previous secured laws accommodating the
procurement by the state of any bequest or of any rights in them, or the
extinguishment or alteration of any such rights, from being pronounced
void because of part III of the constitution, i.e., the key rights. Article
31B, made the ninth schedule to the Constitution and shielded the laws
put inside from being pronounced void by virtue of part III.
The fourth amendment to the Constitution substituted clause (2) of
article 31, with the following:
No property might be mandatorily gained or demanded put
something aside for an open reason and spare by expert of a
law which accommodates pay for the property so procured or
ordered and either settles the measure of the pay or indicates
5 Hindu Religious Endowment v. Swamiyar, AIR 1954 SC 282.6 Dwaraka Das Srinivas v. Sholapur Co. Ltd, AIR 1958 SC 328.7 Bombay Dyeing Co v. State of Bombay, AIR 1958 SC 328.8 Supra note 5.9 Supra note 4.10 State of Kerala v. Padmanabhan Nair, (1985) 1 SCC 429.
Need of Right to Property to be reconsidered back as a Fundamental Right | 83
the standards on which, and the way in which, the
remuneration is to be resolved and given and no such law
should be brought, being referred to, in any court on the
ground that the pay gave by that law isn't satisfactory.
11Sankari Prasad Singh v. Union of India and Anr
To abrogate the zamindari framework broadly pervasive in India,
some state government's instituted the Zamindari Abolition Act to gain
gigantic holding of land that lay with rich zamindars, and redistribute
them among the occupants. Be that as it may, the same was tested as being
unlawful and violative of the right to property that was incorporated into
the fundamental rights. The act was held illegal by the high court of Patna
however was maintained by the high courts of Allahabad and Nagpur;
whereby in the long run the issue was put under the watchful eye of the
Indian Supreme Court. Amidst this, the union government presented the
first amendment to the constitution, approving the zamindari abolition
laws and constraining the fundamental right to property. New article 31
A and B were incorporated into the Constitution to approve the censured
measures. The zamindars tested the main amendment in the Supreme
Court, expressing that it was illegal and invalid.
The apex court held that that the power of the parliament to amend
the Constitution of India including the fundamental rights is entailed in
article 368, and is not violative of the provisions of the Constitution. The
validity of the land reforms was upheld by the court.
12I.C. Golaknath v. State of Punjab
In 1967, the apex court struck down the seventeenth amendment to
the Constitution, which stated that:
given further that where any law makes any arrangement for
the securing by the state of any bequest and where any land
involved in that is held by a man under his own development,
11 AIR 1951 SC 458.12 AIR 1967 SC 1643.
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it might not be legitimate for the state to obtain any part of
such land as is inside as far as possible pertinent to him under
any law for the present in compel or any building or structure
standing consequently or appurtenant thereto, unless the law
identifying with the procurement of such land, building or
structure, accommodates instalment of remuneration at a rate
which should not be not as much as the market esteem
thereof.
13Controversy relating to article 31C: Kesavananda Bharati case
With respect to article 31C, please note that the provision was
challenged under the celebrated decision of Keshavanand Bharati v.
State of Kerala. One of the provisions of article 31C stated that any
legislative declaration that a particular law was made to implement the
directive principles set out in article 39(b)-(c), shall not be open to
question in the court. This would mean that any such law could not be
challenged by way of a judicial review, which is a right that would
otherwise have been available.
The Supreme Court in this case had held that judicial review is one of
the essential features of the constitution. The legislature could not, by
passing a constitutional amendment dilute the right to seek judicial
review which is one of the essential features of the constitution.
Amid this period the Supreme Court was by and large of the view
that land changes should be maintained regardless of the possibility that 14they did entirely conflict against the right to property though the
Supreme Court was itself skeptical about the way the government went 15
about exercising its administrative power in this regard. The Supreme
Court was insistent that the administrative discretion to appropriate or
infringe property rights should be in accordance with law and cannot be 16 by mere fact. The court, however, truly conflicted with the communist
13 AIR 1973 SC 1461.14 Vasanlal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4.15 Raghubir Singh v. Court of Wards, AIR 1953 SC 373.16 Bishan Das v. State of Punjab, AIR 1961 SC 1570.
Need of Right to Property to be reconsidered back as a Fundamental Right | 85
official amid the time of nationalization, when the court splendidly went
to bat for the right to property in however a constrained way against the 17over compasses of the communist state.
18 The court in the Bank Nationalisation case has clearly pointed out
the following two points:
a. The Constitution ensures the right to remuneration which is
identical in cash to the estimation of the property has been
obligatorily gained. This is the essential assurance. The law should
in this way give remuneration and to deciding pay pertinent
standards must be indicated: if the standards are definitely not 19pertinent a definitive esteem decided isn't compensation.
b. The Constitution ensures that the seize proprietor must be given the
esteem of his property (the sensible remuneration for the loss of the
property). That sensible remuneration must not be illusionary and
not come to by the use of an endeavour as a unit in the wake of
granting remuneration for a few things which go to make up the
endeavour and discarding essential things adds up to receiving an
unimportant rule in the assurance of the estimation of the endeavour 20
what's more, does not outfit pay to the dispossessed proprietor.
Post 1978 position of right to property
The Supreme Court, through its judgments, tried to disseminate
material assets for the benefit of everyone by limiting the amassing of 21wealth by some. The court, however, was additionally dependable in
conditioning down the abundances on the right to property and riches by 22
the communist state. During the time of liberalization, the Supreme
Court has endeavoured to return to reinterpret the arrangements which
offer assurance to one side to property in order to make the insurance
17 R.C Cooper v. Union of India, (1970)1 SCC 248.18 Ibid.19 Ibid.20 Ibid.21 State of Tamil Nadu v. Abu Kavur Bai, (1984) 1 SCC 515.22 K.R.Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226.
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genuine what's more, not fanciful and weaken the claim of dissemination 23of wealth. However, this has been an incremental approach and
substantially more should be done to move and adjust back to the first in
the constitution. This implies the procurement of property isn't just
transient however to be acknowledged as substantial it must adjust to
profound rules and also the Indian originations perceive obviously that
however property can be delighted in which has not been procured
entirely as far as the law, it can't be called the genuine property of the
individual concerned. Property accordingly isn't simply an individual
right yet a development furthermore, some portion of social and 24
otherworldly order. The premise of origination of property in the social
orders of India isn't an inflexible and clear outline of cases having a place
with a person, be that as it may, is a whole of societal and individual
claims all of which require not be founded on clear individual legitimate
outline.
IV Recent approach of the Indian Supreme
Court to right to property
Soon after the abolition of the fundamental right to property, in Bhim 25Singh v. Union of India, the Supreme Court recognised the right to
property as a fundamental right. Without this fundamental right to
property, it took the response to the next fundamental right of equality
which is completely the idea of sensibility under article 14 for refuting
certain parts of the urban land roof enactment. Today, the need is felt to re-
establish the right to property as a fundamental right for securing, in any
event, the rudimentary and fundamental exclusive rights of the poor
Indian nationals against necessary land securing. Recently, the Supreme
Court, while opposing the well-established doctrine of adverse
possession, as against the rights of the genuine proprietor, watched that
23 Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705.24 J.M.Derret, Religion Law and State in India131-132 (Oxford University Press, New Delhi, 1999).25 (1981) 1 SCC 166.
Need of Right to Property to be reconsidered back as a Fundamental Right | 87
The right to property is presently thought to be not just an established
right or statutory right yet, in addition, a human right.
In a very recent public interest litigation filed in the Supreme Court
which was still pending in the hon'ble court, it was held that the very
purpose for which the ideal to property consigned to a minor statutory
appropriate in the late 1970s isn't not any more important. It was
contended by Harish Salve, the educated advice for the solicitors that.
The right to property is made a statutory appropriate in 1978 to cancel
extensive land possessions with zamindars and rich and their
dissemination among landless labourers; having accomplished the very
reason behind the authoritative activity in the late 1970s, the
administration should now start crisp measures to put ideal to property
back in the key rights.
26 In P.T.Munichikkanna Reddy v. Revamma, the Supreme Court of
India has held that the right to property is not just a statutory right but is
also a human right. The Supreme Court appears to have approved the 27decision of the European Court of Human Rights in J.A.Pye v. UK
where the ECHR (European Convention on Human Rights) took the
concept of adverse possession very unkindly. In P.T.Munichikkanna
Reddy, the Supreme Court held that the right of property is now
considered to be not only a constitutional or statutory right but also a 28human right. In I.R.Coelho v. State of Tamil Nadu the apex court held
that even though an act is placed under the Ninth schedule by a
constitutional amendment, it would be open to challenge on the ground
that it destroys or abrogates the basic structure of the Constitution.
Therefore, setting any Act in the Ninth schedule additionally by
established change would not spare the Act in the event that it disregards
the piece of the Constitution.
In the event that legal proclamation of the Supreme Court was to build up
this pattern of ideal to property is a piece of human rights and in this
26 (2007) 6 SCC 59.27 AIR 2007 SC 1753.28 2007(2) SCR 980; 2007(10) SCC 448; 2007(3) SCC 349.
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manner, and assuming control or securing would require full repayment
in the light of article 21, read with articles 14 , and 19. It would definitely
be a great achievement. The fundamental conclusion of this would be that
the right to remuneration for procurement of property would be a human
right and along these lines it can be enveloped under the fundamental
structure of the Constitution. The wheel would doubtlessly have turned
more than full hover since the whole tussle between the lawmaking body
and the judiciary started instantly after the initiation of the Constitution as
to the refusal of the state to pay full remuneration for procurement of
property, which may around then have been essential however it is
completely unjustified.
V Right to property with demonetisation aspect
The Constitution of India vows a right to property. Article 300A,
states that no individual should be denied of his property spare by the
specialist of law, that is, by an ordinance or an Act of parliament. The
organization's inability to issue an ordinance controls the commitment
owed to the overall public. Thus, it has been claimed that the
demonstration of denying them the right to their property impermissibly
harms article 300A. It is pertinently contended that limits on withdrawal
of cash from bank accounts and exchange of the notes are contrary to the
mandate of article 300A. The Act of refusing to let people withdraw their
own money in cash serves as an unqualified restriction on their right to
property, and, by placing limits on such an exchange, the government has 29extinguished the right entirely.
Right to property was given the widest connotation in Madan 30
Mohan Pathak v. Union of India & Others wherein the Supreme Court
stated that property includes ownership, estates and interests in corporeal
things, and also rights such as trade-marks, copyrights, patents and even
rights in personam capable of transfer or transmission, such as debts.
Thus, it was held that public debts are property and the extinguishment of
29 nd D. D Basu, Introduction to the Constitution of India 140 (Lexis Nexis, New Delhi, 22 edn., 2015).30 1978 AIR 803.
Need of Right to Property to be reconsidered back as a Fundamental Right | 89
such an obligation, the fulfilment of which is the duty of the state,
amounts to compulsory procurement of that debt. The Constitution of
India vows a right to property. Article 300A, states that no individual
should be denied of his property spare by the specialist of law, that is, by
an ordinance or an Act of parliament. The organization's inability to issue
an ordinance controls the commitment owed to the overall public. Thus,
it has been claimed that the demonstration of denying them the right to 31their property impermissibly harms article 300A.
VI The degradation of right to property from
fundamental to constitutional right
The right to property was a three fold right:
1. Article 19(1)(f), stated that every person had a right to acquire any
property by lawful means, hold it as his own and dispose of it freely,
limited only by reasonable restrictions to serve the exigencies of
public welfare any other restrictions that may be imposed by the
state to protect interests of scheduled tribes.
2. Article 31(1), provided that no person shall be deprived of his right
to property except by the authority of law.
3. Article 31(2), provided that if the state wants to acquire the private
property of an individual or to requisition (that is to take over the
property of a temporary period), it could do so only if such
acquisition or requisition is for a public purpose and that
compensation would be payable to the owner.th
Prior to the deletion under the 44 Amendment Act, several
amendments were made by successive Congress governments eroding
these rights. The following are some of the significant changes:
1. The adequacy of compensation payable on acquisition or requisition
could not be questioned in a court of law.
2. The obligation of the government to pay compensation was watered
down by addition of exceptions to such requirements. These
exceptions included if the government acquired property for estates
31 Supra note 3.
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or intermediate rights (article 31A), or where land was acquired
under certain specified enactments (article 31B) and acquisitions
aimed towards implementation of the directive principle set out in
article 39(b)(c), which was aimed at social redistribution of wealth
(article 31C).
The 44th amendment and abolition of article 31 to 31C
The 44th amendment Act rang the death knell for the right to
property and both article 19(1)(f) and 31 were as a result removed.
Whenever a law if passed or amended, it is usual for the legislature to
issue a statement of objects and reasons to explain the reason for the
proposed law or amendment.
The statement of objects and reasons to the 44th Amendment Act
provides in this regard the following:
1. In view of the special position sought to be given to fundamental
rights, the right to property ceased to be a fundamental right and
became only a legal right. Necessary amendments for this purpose
are being made to article 19 and article 31, is being deleted. It was,
however, ensured that the removal of property from the list of
fundamental rights would not affect the right of minorities to
establish and administer educational institutions of their choice.
2. Similarly, the right of persons holding land for personal cultivation
and within the ceiling limit to receive compensation at the market
value was not affected.
3. Property, while ceasing to be a fundamental right, would, however,
be given express recognition as a legal right, provision being made
that no person shall be deprived of his property save in accordance
with law.
Instead, article 300A, was added that provides that no person shall
be deprived of his property except by authority of law.
The effect of the amendment
Need of Right to Property to be reconsidered back as a Fundamental Right | 91
As the right to property is no longer a fundamental right but only a
legal right, a person does not have a right to file a writ in the Supreme
Court under article 32, for infringement of such right. He can either file a
suit against the government or file a writ under article 226, to the high
court. This dilutes a person's remedies on deprivation of his right to
property.
Article 300A
People are not to be denied property except by procedure established th
by law. The 44 Amendment Act which deleted article 19(1) (f), and
presented this article brought out the accompanying essential changes:
a) In perspective of the exceptional position looked to be given to
major rights, the right to the property, which has been the event for
more than one amendment of the Constitution, would stop to be a
central right and turn out to be just a lawful right.
b) Essential revisions for this object were made to article 19, and article
31, was deleted. It was, however, be guaranteed that the expulsion of
property from the rundown of basic rights would not influence the
rights of the minorities to build up and manage instructive
organizations of their decision.
c) Likewise, the right of people holding land for individual
development and inside roof the cut-off to get showcase
remuneration at the market esteem won't be influenced.
Principle under article 300 A
The Constitution (after 44th amendment) does not explicitly present
the right to gain, hold and discard property. If a man has procured and
held the property he cannot be denied of it without any special provision
of law. The security given to private property under article 300A, is
accessible to all people who hold property in India, natives and in
addition outsiders and normal people and lawful people, for example,
corporate bodies and so on. The law approving ownership of property 32
must be passed by the best possible expert i.e. by parliament. This
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implies (a) the law must be passed by a skilful council, and (b) it must not
influence antagonistically any of the rights, major or protected – in a way
not justified by the constitution. For this benefit, the legitimacy of such
law will be inspected in the light of the prior choices of the Supreme
Court.
The law approving hardship of property must be reasonable and just.
The approach of the Supreme Court in Maneka Gandhi's case, the term
'law' in article 21, will be the controlling star to the Supreme Court for
deciding the legitimacy of a law under article 300A. Article 300A, is free
from the dominance of the 'directive principles of state policy' and it
would afford greater protection to the right to property than what would 33have been in article 31.
Importance of property whether or not a fundamental right
Although after the with amendment, maybe property is no more a
basic right, certain property rights still hold the character of or connection
to, basic rights. Examples like article 30(1) (a), gives that any obligatory
securing of property having a place with an instructive organization of a
religious or a semantic minority, the remuneration payable should be, for
example, would not confine or repeal the right ensured to that minority
under article 30(1), article 31B, make legitimate certain acts and controls
relating to arrive changes which are recorded in the ninth calendar,
despite any opposite judgment, announce request of any court.
Article 31C, gives insurance to the laws offering impact to certain 34mandate standards.
VII Conclusion
The original Constitution of India had defended the right to property,
perceived the same under part the III of the constitution. Be that as it may,
32 H.M. Jain, “The Forty-fourth Amendment and the Right to Property” Journal of Constitutional and Parliamentary Studies 355 (1979).33 M. Hidayatulla, Constitutional Law of India 368 (The Bar Council of India Trust in Association, 1986).34 T.K.Tope, Constitutional Law of India 1777-78 (Eastern Book Company, Lucknow, 1982).
Need of Right to Property to be reconsidered back as a Fundamental Right | 93
not long after the Constitution of India came into compelling a protracted
fight initiated between the people who were looked to be denied of their
property and the governing body and official until its last summit. At last
by the forty-fourth protected alteration ideal to property as initially
visualized by the 1950 Constitution was erased and just a little part of the
right was held in article 300A, as a established right. The entire beginning
of the argument about the right to property was the unwillingness of the
lawmaking body and official to pay full remuneration or full advertise an
incentive for the property gained.
The right to property is a basic civil right which is recognised way 35
back from the centuries. No place on the planet majority rule
government perceived with discretionary control. India being a majority
rule nation could not practice its sovereign power in subjective way. In
this manner, administrative obstruction may happen as seizure of
property rights of people when open intrigue warrants. Confiscation of
property must be subjected to a few conditions and restrictions and it
ought not to be as per the impulses and fancies of the legislature. The
moral premise and states of seizure will be the basic state of famous area
control. Subsequently, even after the evacuation of article 31, through
and through, there must be avocation for the impedance with singular
property appropriate by the government. Also right to property is linked
with article 21, of the Constitution of India as right to life includes right to
live with personal liberty, so right to property is indirectly linked with one
of the fundamental rights and so it should be reconsidered back as the
fundamental right because in India all the fundamental rights are to be
read together and we have to take in cognisance each and every right
which comes into picture and not confine to that particular right on which
the subsisting matter is concerned. So, according to this doctrine, right to
property should be considered back as fundamental right.
Also with the aforementioned judgments and reasoning put forth
35 John Locke, Second Treatise of Civil Government (Awnsham Churchill, England, 1948).
94 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
right to property should be considered back as the fundamental right
because the Constitution was framed by an extraordinary body of men, a
body of men whose combined virtues and talents have seldom if ever
been equalled in this country. They possessed that rare quality of mind,
which unites theory and practice. They understood the unique conditions
of the country and the enduring needs and aspirations of the people, and
they adapted their principles to the character and genius of the nation.
They visualised a society in which every citizen should be the owner of
some property not only as a means of sustenance but also as a zone of
security from tyranny and economic oppression and they put that right
above the vote of transient majority.
Need of Right to Property to be reconsidered back as a Fundamental Right | 95
AADHAAR, RIGHT TO PRIVACY AND THE
PRIVACY TRADE-OFFS: FOR GREATER BENEFITS
AND NATIONAL INTERESTS*Aishwarya Agarwal
Abstract
As per Marc Rotenberg, right to privacy is “the rights and responsibilities associated with the collection and use of personal information”. Privacy of an individual is compromised for benefit of larger section of society like for national security, public interest and many more. Since its initiation, Aadhaar has been criticised as a project which violates privacy of people. In light of these, the article shall introduce the concept of privacy and the development of right to privacy in India. Moving further, light will be shed on Justice K.S. Puttaswamy v. Union of India along with a discussion on how Aadhaar identity cards violate an individual's privacy. Finally, certain trade-offs in privacy shall be dealt with.
I Introduction
ONE OF the most discussed and worrying aspect of this age is the
subject of privacy. Over recent years the subject has been widely
canvassed not only amongst lawyers and journalists but also among
general public. People have cared about privacy since time immemorial.
As per the National Research Council of United States of America,
privacy includes reference to behavioral, financial, medical, biometric,
consumer, and biographical types of information available about an
individual whether primary or derived from analysis. Privacy is
important to protect:
1 people's interests in competitive situations;
someone, who may want to keep some aspect of his life or behavior 2private;
3 someone, who may want his medical records to be kept private; or
* rd 3 year student, B.A. LL.B. (Hons.), Hidayatullah National Law University, Raipur.1 James Rachels, “Why Privacy is Important” 4 Philosophy and Pub. Aff. 323 (1975).2 Ibid.3 Interview with Dr. Malcolm Todd, President of the A.M.A., Miami Herald, Oct. 26, 1973.
people, who apply for credit or for large amounts of insurance or
jobs of certain types and are often investigated, and result is a fat file 4of information about them.
The concept of right to privacy emerged and developed, in almost all
nations over the globe in varied dimensions. Ancient Roman law and the
Code of Hammurabi protected the home against intrusion. Freedom from
government intrusion was a central privacy issue, at the time of the
revolutionary war in America. During early 1500s, in Britain, the idea
that citizen should be free from certain kinds of intrusive government
searches developed. In India, the concept of privacy can be traced out in
the ancient text of Hindus but the right to privacy has somewhat been a 5
vague concept.
II Development of right to privacy in India
In modern India, the issue of right to privacy was initially discussed
in Constituent Assembly debate where K.S. Karimuddin moved an
amendment on the lines of the Constitution of United States of America,
where B.R. Ambedkar gave it only reserved support and which failed to
get the incorporation as the right in the Constitution of India. However,
since then, the issue has become a matter of great debate and conflict and 6has gained more momentum after the issue of leakage of Aadhaar details
of citizens. The development of concept of right to privacy has been
traced below:
7 In M.P. Sharma v. Satish Chandra, Supreme Court on the issue of
'power of search and seizure' held that they cannot bring privacy as the
fundament right as it is something alien to the Constitution of India and
4 Supra note 1 at 324.5 As per the Hitopadesh, certain matters relating to sex, worship and family should not be disclosed and so were protected from disclosure. 6 Aadhaar is a 12-digit biometric identification number of a person in India and was born to plug leakages in the delivery of state benefits.7 1954 AIR 300.
Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 97
8constitution makers did not bother about the right to privacy. The Indian
judiciary has forwarded the same perspective in various other cases also. 9In Kharak Singh Case, K.R. Suraj v. The Excise Inspector
10Parappanangadi and State Rep. by Inspector of Police v. N.M.T. Joy
11Immaculate, the apex court affirmed that right to privacy cannot use
against the power of search seizure. In Maneka Gandhi v. Union of 12India, the Supreme Court adopted wide interpretation of right to life and
included the right to privacy into to the scope of right to life under article 13
21. In Unni Krishnan v. State of Andhra Pradesh, court mentioned the
twelve meaning of right to life; and right to privacy was one among them. 14
In Auto Shankar case, the Supreme Court held that “the petitioners have
a right to publish what they allege to be the autobiography or life story of
Auto Shankar insofar as it appears from the public records, even without
his consent or authorization.” However, they may be invading his right to
privacy, if they go beyond that and publish his life story.
Similarly, in People's Union for Civil Liberties (PUCL) v. Union of 15India, the Supreme Court held that “conversations on the telephone are
often of an intimate and confidential character and telephone-
conversation is a part of modern man's life” and if right to privacy can be
claimed or has been infringed in the given case depends upon the facts of
that case.
16 In Mr. 'X' v. Hospital 'Z' it was decided that:
when the right to privacy clashes with the other fundamental
right i.e., right of privacy one person and right to lead a
healthy life of another (society), then the right which would
advance public morality or public interest would alone be
enforced.8 Supra note 7.9 Kharak Singh v. The State of U. P. and Others, 1963 AIR 1295.10 2000 (8) SCALE 64.11 AIR 2004 SC 2282.12 1978 AIR 597.13 1993 AIR 2178.14 R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264.15 [2013] 12 SCR 283.16 Appeal (civil) 4641 of 1998.
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Recently, a nine-judge bench of the Supreme Court headed by the
then Chief Justice JS Khehar, ruled on August 24, 2017, in Justice KS 17Puttaswamy & Ors v. Union of India that the right to privacy is a
fundamental right for Indian citizens under article 21, part III,
Constitution of India. Hence, no legislation passed by the central
government shall unduly violate it but reasonable restrictions can be put
for national security though violative of one's right to privacy. After
observation of the so discussed cases one can say that right to privacy is
well related to individual's personal liberty and can be recognized as a
right to life. However, reasonable restrictions can be put for national 18
security which may violate one's right to privacy.
III Aadhar: Compromising individual rights
for national interests
The Aadhaar project is the world's largest national identity scheme,
launched by the Government of India, which seeks to collect biometric
and demographic data of residents and store these in a centralised 19database. To date, about 1.1 billion users have enrolled in the system.
The objective of the Unique Identification Authority of India
(UIDAI), constituted in January 2009, is a simple one: “to issue a unique
identity (UID) number for every resident in the country. The impact of
this initiative, however, goes to the heart of our development agenda 20today.” India had long lacked the identification infrastructure that is in
place in other countries which acted as biggest barriers that the poor face
in accessing welfare and social services effectively, as it increases costs
and effort of identification as well as the risk of duplicates. The key role of
this UID number is that of an enabler - a number that helps governments
design better welfare programmes, enables residents to access resources
more easily wherever they live, and allows agencies and programmes
such as the National Rural Employment Guarantee Scheme (NREGS),
17 2017 SCC Online SC 996.18 Ibid.19 Unique Identification Authority of India, 2017.20 Ibid.
Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 99
the Public Distribution System (PDS) and the Sarva Shiksha Abhiyan
(SSA) to deliver benefits and services effectively and transparently.
Possible ways of breach of privacy
As discussed, Aadhaar seeks to collect biometric and demographic
data of residents, an individual the privacy can be compromised in
various ways in a setting such as in Aadhaar. Correlation of identities
across domains may become possible to track individual's activities
across multiple domains of service (AUAs) using their global Aadhaar
IDs which are valid across these domains.
Identification of a person without his consent by unauthorised use of
his biometrics can be easily carried out. Such violations may occur by
inappropriate matching of iris scans or facial photographs or fingerprint
or stored in the Aadhaar database, or using the demographic data to
identify people not only without their consent but also beyond legal
provisions. Identity theft of an individual through leakage of biometric
and demographic data from central repository or enrolment device.
Illegal tracking or surveillance of an individual (without proper
authorisation or legal sanction) using the authentic and identification
records and trails in the Aadhaar database, or in one or more AUA's
databases. However, though there are serious privacy concerns at
present, Aadhaar can be made safe from a technology perspective with 21due diligence. It is well said:
If you put a key under the mat for the cops, a burglar can find
it, too. Criminals are using every technology tool at their
disposal to hack into people's accounts. If they know there's a
key hidden somewhere, they won't stop until they find it.
The legal frameworks need to be more specific and significant
strengthening. The effectiveness of biometric identification and to what
extent are the biometric features required are remaining important
21 Tim Cook, Apple's CEO, On privacy and security, EPIC's Champions of Freedom, available at: https://epic.org/2015/06/tim-cook-backs-privacy-crypto-.html&s=1&hl=en-IN (last visited on August 20, 2017).
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questions that require further study. Finally, the Aadhaar project requires
informed and comprehensive policy debates, covering all angles,
realising its full effectiveness without causing the kind of privacy
concerns and disruptions that have been reported. With these, the
Aadhaar-UIDAI will succeed towards benefit of nation, though
compromising an individual's privacy.
IV Case analysis: Justice K.S. Puttaswamy v.
Union of India & Ors.
The pending case of Justice K.S. Puttaswamy v. Union of India & 22
Ors. was the first in the series of cases challenging the Aadhaar scheme.
The case, along with fifteen other matters tagged along with it, is
currently pending before the apex court, after being referred to the
Constitution Bench in 2015. In 2017, the entire bench of Supreme Court
of India has given 547 pages judgment on right to privacy in India. Justice
D.Y. Chandrachud, while delivering the main judgment, on behalf of the
Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and Justice S. 23Abdul Nazeer has held:
Life and personal liberty are inalienable rights. These are
rights which are inseparable from a dignified human
existence. The dignity of the individual, equality between
human beings and the quest for liberty are the foundational
pillars of the Constitution of India…Life and personal liberty
are not creations of the constitution. These rights are
recognised by the Constitution as inhering in each individual
as an intrinsic and inseparable part of the human element
which dwells within.
Justices Chelameswar, Bobde, Sapre and Kaul have also agreed with
Justice Chandrachud's judgment. Just as the Supreme Court has
interpreted other fundamental rights in the past and included the rights to
education; to livelihood; to food, water, and shelter; against custodial
22 Supra note 17.23 Ibid.
Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 101
violence; reproductive rights, among many others, it has now interpreted
them to include a right to privacy also. As with any fundamental right,
lawyers and courts will interpret whether the right is infringed, and, if so,
whether a limitation like “reasonable restrictions” or “procedure
established by law” applies. So is the case for right to privacy also. Hence
reasonable restrictions can be put on an individual's right to privacy. This
case poses much value to decide the fate of Aadhaar.
Though the judgment itself do not intend to affect the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016 but it will do so. Since personal information such as
biometric information is collected and processed by the government
under this Act, it shall have to pass the basic tests of articles 21 and 14 of 24the Constitution, mentioned in the judgment.
The observations of the court in the judgment throw light on some of
the questions surrounding the Aadhaar challenge. They can be stated as:
The fulfillment of welfare objectives would be a legitimate aim
towards which the right to privacy could be infringed
(notwithstanding that the other conditions of a reasonable restriction 25
are met).
However, the furtherance of welfare objectives should not take 26
precedence over right to privacy.
The primacy of individual consent (in relation to one's data /
information) provides possible context to the discussion on the 27mandatory and permanent nature of Aadhaar.
V Privacy trade-off for national interests
Privacy is a complex issue as multiple interests are at stake because
24 The tests are: (i) The need for an existence of a law; (ii) The law should not be arbitrary; and (iii) The infringement of the right by such law should be proportional for achieving a legitimate state aim.25 Supra note 22 at para 154-155.26 Ibid.27 Ibid.
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the information has much value to anyone either at the moment of 28collection or in the future. It is said:
once a civilization has made distinction between the outer
and the inner man; the life of the soul and the life of the body;
public and private rights; and society and solitude, it
becomes impossible to avoid the idea of privacy by whatever
name it may be called- the idea of a private space in which
man may become and remain 'himself'.
The tension between individual privacy and national interests has
been an enduring force all over the globe, its origins long predating the
advent of new media, information revolution, new circumstances, new
technologies, and new societal contexts that have not only sharply
intensified the conflict but also changed its focus. Advancement of
technology has given the government instruments for watching people
and collecting information about them. It is now simple and easier to
collect information by location tracking, data mining, wire-tapping, spy
satellites, X-ray devices, bugging, and more. Nowhere else is the tension
between “it's none of your business” and “what have you got to hide” so 29easily seen. The privacy-national interest debate profoundly affects
how government activities be regulated. However, major problem with
the debate is that privacy often loses to national interest. It is to be noted
that right to privacy does not prohibit any publication of matter which is 30of public or general interest. Many believe they must trade privacy in
order to be more secure while others are making powerful arguments to
encourage people to accept this tradeoff.
Some of the most complex and the controversial tradeoffs involve a
tradeoff of the interests of individuals against the interests of collective
society. It is interesting to note that this also goes well with the Jeremy
28 Dorothy J. Glancy, “The Invention of the Right to Privacy” 21 ALR 2 (1979).29 James Waldo, et. al., Engaging Privacy and Information Technology in a Digital Age, Committee on Privacy in the Information Age 251 (National Research Council, 2007).30 Samuel Warren and Louis D. Brandeis, “The Right to Privacy” 1 Kingston L. Rev. 102 (1968).
Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 103
31Bentham's utilitarianism; the greatest happiness of the greatest number,
where happiness is measured in terms of pleasure and pain. The principle
aims at greater good of society. On these lines, privacy can be traded-off
for national interests and security. In other words, right to privacy of one
individual can be compromised for benefit (which is happiness as per the
principle) of more number of people. Tradeoff in privacy for national
interest includes:
Video surveillance, to deter crime, pose a privacy risk when male
camera operators use cameras to focus on women's private parts,
Cameras monitoring the movement of ordinary citizens in public
places for increasing public safety or collection of data on peoples'
political activities or nation's security,
Knowledge of the identities of individuals by law enforcement
authorities, interested in reading about terrorism or bomb-making,
Geographic tracking of cell-phone locations for enabling
emergency location.
Installing spy satellites to keep an eye over the enemies,
Availability of public government on the internet for increasing the
openness of government,
Librarians and many state legislatures, concerned about ensuring an
unfettered, free and unmonitored flow of information to library
patrons, may jeopardize individuals' reading habits and making it
potentially the subject of government investigation, monitoring, etc.
Other tradeoffs may be:
Inquiry and record of personal financial information of an individual
by a bank for evaluating creditworthiness for a bank loan.
31 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Batoche Books, Ontario, 1781).
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For emergency care of an individual, considering his privately kept
medical records without consent.
Inquiry and record of personal information of an individual by a
retailer about purchases of various products for future marketing of
products to the individual.
Medical data of insurers obtained through third parties for deciding
on rates or availability of health insurance for an individual.
However, the fact that tradeoffs are sometimes significant should not
be taken to convey that tradeoffs are always necessary. In some instances,
careful planning and design may minimize the tradeoffs. So, a design
decision for a system to discard data immediately after it has been used 32
for the purpose thereby, mitigating privacy tradeoffs.
VI Conclusion
The right to privacy is a multi-dimensional concept. In modern
society, right to privacy has been recognised both in the eye of the law and 33
in common parlance. The privacy concerns are often grounded in
information that may be used for purposes other than a stated purpose.
Indeed, in the examples discussed in previous pages, another possible
and less benign purpose might easily be envisioned and thus might
change entirely one's framing of a privacy issue. In India, right to privacy
is dealt in article 21 of the Constitution as one of the right under right to
life. However, reasonable restrictions can be put for national security 34
which may violate one's right to privacy. So, an individual's privacy can
be traded-off for national interest. On these lines, individual's personal
data use for Aadhaar is also valid. Perhaps, considerations of law
enforcement and national security that contrast with privacy are the best
known examples of the general tradeoffs in the privacy debate.
32 Shiv Shankar Singh, “Privacy and Data Protection in India” 5 PL 1 (2012).33 Ibid.34 Supra note 17.
Aadhaar, Right to Privacy and the Privacy Trade-offs: For Greater Benefits and National | 105
* nd 2 year student, B.A. LL.B., NALSAR University of Law, Hyderabad.1 Gautam Bhatia, “The Equality of Entry”, The Hindu, Sept. 8, 2016, available at: http://www.thehindu.com/todays-paper/tp-opinion/The-equality-of-entry/article14628391.ece (last visited October 22, 2017).
SABARIMALA CONTROVERSY AND
EQUALITY FOR WOMEN: QUESTION OF
CONSTITUTIONALITY OF THE BAN*Saumya Srivastava
Abstract
Religion sanctioned gender inequality has been prevalent in the Indian social structure from time immemorial. It most clearly manifests itself in the bar on entry of women in various temples and mosques like Sabarimala shrine, Haji Ali Dargah and the Shani Shignapur temple. Recent judgements on the above-mentioned cases have declared the ban on women's entry as void. The Sabarimala case still awaits judgement. The focal point of the paper is the Sabarimala controversy. The paper traces the origin of the controversy and temple's traditions. The paper further discusses the Kerala High Court judgement of 1991 which declared the ban as constitutional. The paper then highlights the constitutional questions that present themselves before the apex court in the present petition by the Young Indian Lawyers Association thereby delving onto the question of constitutional morality, horizontal application of fundamental rights and the irregularities in the 'essential religious practice' test.
I Introduction
AMBEDKAR, WHEN asked what made him so passionate about
the entry of Dalits in the temples gave a very short and crisp reply when
he said that “the issue is not entry but equality.” Ambedkar was not
bothered by the fact that he was indifferent to religious matters or that a
mere permission to Dalits to enter the temple premises would in no way
end the oppression of Dalits. What was crucial for him was to smash the
instruments through which an unequal society fortifies its hierarchies; in 1the above case, denying equal access to all in religious places. The
unequal access to religious places has been carried on over the years and
was recently brought under judicial scrutiny in the face of Sabarimala ban
on the entry of women of reproductive age.
From time immemorial, women have been discriminated on several
pretexts with the accreditation of religion. Across all religions the
sexuality of women is feared and this fear manifests itself in the form of
various religious practices. Instances of not allowing women to hold key
positions in churches or denying entry to women in certain shrines are not
unknown to the society. Such fear of women's sexuality still persists even
in the twenty first century. But women, in this century have become
vigilant enough to fight for their rights and get their due. The notion that a
woman is impure while menstruating took shape at the time when
civilization was being transformed into a patriarchal social structure. It
was the commencement of male dominance and subsequent subduing of 2
women in various forms.
The Sabarimala controversy that is going on for a decade now
speaks volume about gender inequality that persists in the Indian society.
The Indian Young Lawyers Association (IYLA) filed a Public Interest
Litigation (PIL) before the Supreme Court of India against the ban on the
entry of women in the age group of ten to fifty to the sanctum sanctorum 3of the Sabarimala temple. The decision on this case has been reserved by
the Supreme Court and will be referred to a constitutional bench. Till now
a three-judge bench of the Supreme Court has been hearing the case and
the proceedings hint towards another landmark judgement allowing the
entry of women to the sanctum sanctorum of the temple. The Supreme 4
Court, through its landmark judgement on the Haji Ali Dargah case and
on the right to privacy case in Justice K.S. Puttaswami(Retd.) v. Union of 5India has laid down progressive precedents and this may pave way to yet
another progressive judgement in the Sabarimala case.
II Sabarimala tradition: emergence of the controversy
The Sabarimala temple, located in the state of Kerala, is a temple
2 Trishala Singh, “Women's Right to Access: Seeking Gender Equality in Places of Worship,” 31 AEIRJ 12 (2016), available at: http://www.imrfjournals.in/pdf/MATHS/arts-education/AEIRJ-31/24.pdf (last visited on October 13, 2017).3 Ibid.4 Noorjehan Saa Niaz v. State of Maharashtra, AIR 2017 (NOC 45) 18.5 (2017) 10 SCC 1.
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 107
dedicated to Lord Ayyappa and is a very famous seat of worship for the
followers of Hindu faith. The temple, unlike various other temples is
even open to the people of other religion. The only restriction that is
placed by the temple is on the entry of women of the age of ten to the age
of fifty. The journey that the pilgrims have to take up before reaching the
sanctum sanctorum of the temple is quite hard and involves a process of
forty-one days. During these forty-one days the pilgrims have to pass
through dense forests to reach the hilltop where the temple is situated.
The pilgrims are mandated to undergo a process of purification of mind
and soul by observing 'votive abstinence' for the above-mentioned
period. The deity Lord Ayyappa is considered a celibate and therefore
even the pilgrims are obligated to observe celibacy for the period of
journey to the temple. The women of the age group ten to fifty are
considered impure because of the biological process of menstruation that 6
they undergo.
The Kerala High Court judgement, 1991
In 1991, the Kerala High Court for the first time dealt with the
question of the validity of the ban on the entry of women in reproductive
age in the case of S. Mahendran v. The Secretary, Travancore Devasom 7
Board, Thiruvananthampuram. The petitioner contended that certain
women were going against the custom and offering prayers at the
Sabarimala temple. He sought from the court appropriate directions to
the state government of Kerala as well as the Devaswom Board to strictly
implement the ban. The three issues before the court then were as
follows:
Whether women of the age ten to fifty can be allowed to enter the
sanctum sanctorum of the Sabarimala temple?
Whether such a restriction is violative of the rights provided by the
Constitution of India under articles 14, 15 and 25?
6 Shashikala Gurpur and Shashikant Hajare, “Tradition – Modernity Polarities and Human Rights of Women: Tracking Judicial Responses in India,” 43 AIJRH 21 available at: http://www.iasir.net (last visited on October 13, 2017).7 AIR 1991 Ker 25.
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Does the court have the authority to give directions to the
Devaswom Board and to the state government to strictly implement
the ban on the entry of women?
The Kerala High Court in its judgement upheld the validity of the
ban and held that the restriction imposed on women is a matter of religion
which is effectively covered by the Constitution of India under article
26(b). A religious denomination has complete autonomy to decide what
customs or rituals are essential to it according to the doctrines of its own
religion under the mentioned article of the Constitution of India and no
outside authority could interfere with the rights of such a religious
denomination. The court also opined that the ban was not violative of
article 15 of the Constitution of India as the restriction was imposed not
on the 'class of women' as a whole but only onto women of a particular
age group. The ban was also justified on the basis that the deity was
celibate and not even a minute deviation should be caused to the celibacy 8
of the deity by young women.
The present petition before the Supreme Court of India
In 2006, Ms. Jayamala, an actress, claimed that she once while
shooting for a film happened to enter the sanctum sanctorum of the
Sabarimala temple. After her declaration, a particular section of the
society demanded for a legal action against the actress. In lieu of this
controversy the Young Indian Lawyers Association along with five
women lawyers filed a Public Interest Litigation in the Supreme Court
challenging the restriction on the entry of women in the Sabarimala
shrine. Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation
of entry) Rules, 1965 was particularly challenged in the petition. This
particular rule restricts the entry of women to Sabarimala at such time
when they by either custom or by usage are prohibited to enter any public
place of worship. The validity of this rule has been called to question. The
matter was being adjudged by Justice S.B. Sinha and Justice Sirpurkar in
2008 after which they referred the case to a three-judge bench. The
8 Supra note 6.
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 109
judgement on the case has been reserved by the Supreme Court. In a
surprising turn of events, the Kerala government came out in support for
the petition and said that denying the entry to women is unfair and has
also filed an affidavit for the same in the Supreme Court.
III Constitutional questions before Supreme Court
Validity of Rule 3(b) of the Kerala Hindu Places of Worship
(Authorisation of entry) Rules, 1965
The first argument of the petitioners in the present petition before the
Supreme Court is that Rule 3(b) of the Act is ultra vires as section 3 of the
Kerala Hindu Places of Worship (Authorisation of entry) Rules, 1965
which says that, notwithstanding anything contained in any law in force
at any time, custom or usage, all places of public worship open to Hindus
shall be open to all classes, sections of Hindu and no class or section of
Hindu shall be denied entry to such a public place of worship.
However, in this instance, the temple authorities have themselves
restricted women of reproductive age from entering the temple under
Rule 3(b). The Kerala High Court had justified the rule saying that the
women of the said age group did not form a “class of Hindus” and so the
rule is valid. This reasoning of the Honourable High Court appears
incorrect as the word “class” denotes a group of people sharing similar
characteristics and the women of the reproductive age group have been
barred from entering the shrine because of the common biological
process of menstruation that all the women undergo and which might
affect the celibacy of Lord Ayyappa. In the light of above facts, it is
difficult to understand how the women of the said age do not form a
“class” of Hindus. The petitioners have also argued on the same lines 9before the Supreme Court.
Looking at the ban from the perspective of article 14 of the
Constitution of India, the ban appears to be in contradiction with the twin
9 Gautam Bhatia, “Sabrimala: Key Constitutional Issues”, Apr. 13, 2016, available at: http://www.legallyindia.com/blogs/sabrimala-key-constitutional-issues (last visited on October 14, 2017).
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test laid down by the article for any classification to be valid. For any
classification to be valid it should be first based on intelligible differentia,
i.e., there should be some common feature separating one group from the
rest and second such differentia should have direct nexus to the objective
of the Act or the provision concerned. The factor of differentia in the
present case is the biological process of menstruation that women
undergo but not men. And the objective of the Act is to allow all sections
of Hindus to enter places of public worship and reduce any sort of
discrimination in this manner. By not allowing women of reproductive
age from entering the premises of the temple, the temple authorities are
encouraging gender inequality which is directly against the objectives of
the Act. Thus, the differentia used has no nexus to the objective of the 10Act.
The Supreme Court seems to disapprove the differentia used in the
ban and has asked the temple authorities that if menstruation is the
measure of purity of women then what is the instrument or method to
measure purity of men. The court remarked that the ban is clearly on the
basis of gender. The responses of the Supreme Court reflect an inclination
to grant gender equality in the present case but the case is still pending 11
before the court and awaits its judgement.
Arguments pertaining to article 25(1) of the Constitution of India
The foundation of the petitioner's case is the article 25(1) of the
Constitution of India. Article 25(1) gives the right to all the citizens “to
profess, practice and propagate their religion save as to public order, 12
morality and health.” The petitioners have argued that worshiping at the
Sabarimala temple is part of their “practicing” their religion and thus is
constitutionally protected under the Constitution. The Supreme Court
10 Editorial, “Sabarimala and Women's Entry: Need for Ban on the Ban,” 14 NUJSLR 10, available at: www.ssrn.com (last visited on October 15, 2017).11 Supra note 10.12 The Constitution of India, 1950, art. 25(1).
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 111
should ideally not find a flaw to this argument but the precedent of the 13Ismail Faruqui v. Union of India shows that the position is a bit
complicated. The hon'ble court had laid down in the case that the right to
worship is not available at every place and any place as long as
worshiping can be carried out effectively. The court also added that
worshiping at a particular place shall be protected by the Constitution
under article 25(1) only when it forms an integral part of the worshiping
itself. In Hinduism, different temples are dedicated to different deities
and therefore worshiping at the particular temple does form an integral 14
part of worshiping itself. In the present case as Sabarimala is
specifically dedicated to Lord Ayyappa so that the limitation given by
Ismail Faruqui case would not be applicable.
Arguments pertaining to article 26(b) of the Constitution of India
The foundation of respondent's case is the argument pertaining to
article 26(b) of the Constitution of India. Article 26(b) gives “the right to
every religious denomination to manage its own affairs in the matter of 16religion save as to public order, morality and health”. The three
essentials pertaining to the right conferred under the article are: i) public
morality, order and health should in no way be affected ii) the institution
should be a religious 'denomination' iii) affairs carried out should pertain
to matters of religion. The petitioners are not contending the fact that
Devaswom Board is a denomination or that the matters are pertaining to
religion. Their main contention is that restriction on women is against
“morality” as mentioned in the article. The petitioners are arguing that
“morality” as mentioned in article 26(b) should be construed as
constitutional morality. Gender justice forms an integral part of
constitutional morality and therefore the Devaswom Board cannot claim 15 that the ban is protected by their rights under the article.
IV Horizontal application of fundamental rights
The petitioners have challenged the ban to be violative of articles 14,
15 and 25. However the fundamental rights bestowed by the Constitution
16 The Constitution of India, 1950, art. 26(b)
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under the mentioned articles are only available against the state. In the
present case it is well established that the Devaswom Board is not a state.
For the petitioners to claim the rights under the articles 14, 15 and 25
against the Devaswom Board it would be essential for the Supreme Court
to follow the horizontal application of fundamental rights. The Supreme
Court in various cases has taken recourse to this approach, the most 17recent being the Haji Ali Dargah case. In this case, the Supreme Court
interpreted the duty of the state to not to discriminate under article 14 and
15 to include positive action on part of the state to stop other people from
discrimination. The court applied the fundamental rights horizontally
instead of going by the traditional vertical approach. It is important to
note that there are two kinds of approach in horizontal application of
fundamental rights. One is the direct application wherein the
fundamental rights are directly enforced against the state. Second being
the indirect approach wherein the state is called upon to take steps against 18
the individual to prevent discrimination.
In the Sabarimala case the constitutionality of the Rule 3(b) is called
into question. Thus, it becomes necessary for the Supreme Court to
follow the approach of indirect horizontal application of fundamental
rights. Thus, the private acts of the Board will not be challenged rather the
law on which they are placing reliance shall be called in question. By
declaring the rule 3(b) as unconstitutional the source of authority of their
action shall be demolished thereby ensuring that the Devaswom Board 19does not act in a discriminatory manner.
V Question of constitutional morality
As already discussed the petitioners are claiming that the morality
referred in article 26(b) should be construed as constitutional morality.
The ban encourages gender inequality which is against constitutional
morality and therefore the Devaswom Board cannot justify the ban on the
17 Supra note 4.18 Supra note 10.19 Ibid.
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 113
basis of article 26(b). There are certain complications in this argument.
The petitioners are basing their argument of gender justice being
essential part of constitutional morality incorporated in article 14 and 15
which are directed against the state. Even if the Supreme Court applies
the fundamental rights horizontally, article 15(2) mandates equal access
to all in public“shops, hotels, restaurants and places of public 20 entertainment”, clearly excluding the places of worship. Also, article
25(2)(b) which says that “all places of worship of Hindus should be open 21
to all sections of Hindus” is written in a language to convey that the state
is permitted to make laws to provide equal access to all in places of
worship but is not obligated to do so. This means that the state is not under
an obligation to make a law that gives equal access to both men and
women to the temple. Thus, it would imply that constitutional morality 22does not endorse gender equality at places of worship.
Another complication with the constitutional morality question is
that articles 25 to 30 of the Constitution of India clearly manifest the
vision of the Constitution to protect the rights of the groups to cultural
autonomy. Not just article 26(b) but article 29 also empowers the
minorities with the right to protect their culture, script and language.
Thus, it cannot be said with authority that the principle of gender equality 23
overrides the rights of cultural autonomy of groups. One argument that
could be made by the petitioners is that the Constitution is primarily
against any form of discrimination made either by the state or by private
individuals in blocking the access of the people to public goods both
material as well as symbolic. Denying entry to a temple to a section of
people, in the present case to the women of fertile age, is against the equal
moral membership principle of a community. Restriction to entry on the
factor of menstruation would be unconstitutional without the slightest
question if done by state and since the temple is central to any community
20 The Constitution of India, 1950, art. 15(2).21 Ibid.22 Supra note 9.23 Ibid.24 Ibid.
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24such a restriction should be similarly unconstitutional.
VI Essential religious practices test
The Supreme Court of India invented 'essential religious practice
test' as early as 1957 to accommodate the competing claims of
communities, state and the individuals in matters of religious practices.
This test is used by the apex court to give constitutional sanction to
seemingly religious practices of a particular religion if in the view of the
court such a practice is 'integral' to the said religion. Initially the court
held that this question shall be determined by taking an internal point of
view and by looking into the doctrines of the concerned religion. Though,
in later years the court started taking an interventionist stance, attempting
to make wide-ranging changes in the religious practices and tried to 25mould religion on rationalistic lines.
The Devaswom Board has justified the restriction of women to the
shrine as being sanctioned by 'custom' and 'usage.' The Supreme Court
has called upon the Board to establish that such a custom form an
essential religious practice of the faith. The controversy with the
'essential religious practice' approach has been in debate for long. In the
opinion of the scholars this approach gives wide powers to the judiciary
to decide which practice would form an essential practice of the religion
and which would not. The scholars have critiqued this approach also
because it does not originate from the Constitution rather is an invention
of the Supreme Court itself. The test is slightly based on Dr. Ambedkar's
speech in the Constituent Assembly debates. The issue with the test is that 26
it is highly subjective and gives the judges huge discretionary powers.
The subjectivity is evident from the judgement of M Ismail Faruqui v.
25 Gautam Bhatia, “The Equality of Entry”, The Hindu, Sept. 8, 2016, available at: http://www.thehindu.com/todays-paper/tp-opinion/The-equality-of-entry/article14628391.ece (last visited on October 22, 2017).26 Supra note 6.27 Supra note 10.28 AIR 1958 SC 731.
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 115
27Union of India where the court held that going to mosque to worship is
not an essential practice of Islam. In Mohd. Hanif Quareshi v. State of 28Bihar, the court held that sacrificing a cow on the day of Bakr'iddid not
form an essential religious practice of Islam.
Flaws in the essential religious practice test
The first flaw in the approach is that the courts lack the authority to
declare a particular practice as essential or non-essential to the religion.
The test does not find any place in the Constitution and is merely an
intervention of the courts by interpreting article 25 of the Constitution.
Second, the test is subject to varied interpretations of different religions
by varied judges. Justice B.P. Banerjee once rightly remarked that if
judges were given the power to decide the essentiality of any religious
practice then the religious practices would become what the courts want 29
it to be. Third, there is no set mechanism to find out whether a particular
practice is essential to a religion or not. The courts largely depend on the
religious scriptures to determine this fact. However, at times the customs
of a particular religion may not be in alignment with the scriptures and 30thus the outcome of the test might be arbitrary.
In the opinion of the author the Supreme Court should refrain from
following the 'essential religious practice' test to determine the validity of
the ban in the Sabarimala case because the outcome may be favourable
but the reasoning behind it could be flawed thereby giving a bad
precedent.
VII Conclusion
The proceedings in the Supreme Court on the Sabarimala case hint
towards declaring the ban on entry of women as unconstitutional but
nothing can be said until the final judgement is given by the apex court.
Courts through their recent judgements have been instrumental in
furthering gender equality and social justice. The ambit of fundamental
29 Acharya Jagadishwarananda Avadhuta v. Commr. of Police, AIR 1990 Cal 336.30 Supra note 9.
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rights is also being increased by the courts as can be seen from the recent
ruling of the Supreme Court in the right to privacy case in Justice K.S. 31Puttaswami (Retd.) v. Union of India where the apex court declared
right to life as being inclusive of right to privacy under article 21. The
Sabarimala case could be another landmark ruling in the judicial history
of India. It is a golden opportunity for the Supreme Court to propagate
gender equality in India and also lay a strong precedent with better
application of fundamental rights using the indirect horizontal approach.
The paper highlighted the origin of the Sabarimala controversy
giving insights into the Kerala High Court judgement of 1991. The
present constitutional questions before the Supreme Court have been laid
down in the paper to give a clear picture of the proceedings that have been
going on for long. The author hopes that the apex court lifts the ban on the
entry of women by following the horizontal application of fundamental
rights and not using the 'essential religious practice' test that has
narrowed down the religious practices to be what courts want it to be.
31 Supra note 5.
Sabarimala Controversy and Equality for Women: Question of Constitutionality of the Ban | 117
ARTICLE 19-THE MOST DIVERSE
FUNDAMENTAL RIGHT*Gopika. A. Aryad
Abstract
Speech is God's gift to mankind. Through speech, a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. Being one of the world's largest democracies in the world, through article 19(1) (a) in Part III of the Constitution of India, our country provides each individual the freedom into express themselves without any interference. When one analyses the history of our country, it is only through the free expression of people's thoughts and opinions, that the democratic form of government functions smoothly in our country. Recognizing the fact that article 19 not only provides freedom of speech and expression, this article deals in detail about the dynamic aspects of this fundamental right.
I Introduction
FREE SPEECH is live wire of the democracy and is integral to the
expansion and fulfilment of individual personality. Iver Jennings said,
“Without freedom of speech, the appeal to reason which is the basis of 1
democracy cannot be made”. Only if the citizens of a country actively
take part in the political set-up by putting forward their opinions and
voicing about their concerns can a democracy run effectively.
Freedom of expression means the right to express one's convictions
and opinions freely, by word of mouth, writing, printing, picture or any 2other manner, and every citizen in our country must be given the liberty
to express their views be it through cinema, art or words. The freedom of
speech and expression not only includes the freedom to hold opinion, to 3seek, to receive and impart, but also provides an individual with the
freedom of movement. But every individual must exercise their freedom;
as well allow others to freely express themselves. How important is
* th 4 year student, B.A. LL.B., Sree Narayana Guru College of Legal Studies, Kollam, Kerala.1 Madhabhusi Sridhar, The Law of Expression: An Analytical Commentary on Law
nd for Media (Asia Law House, Hyderabad, 2 edn., 2007).2 All India Anna DMK v. K Govindam Kutty, 1996 AIHC 4509.3 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
expression for citizens in our country should not remain just as a topic of
debate for news channels when an issue relating to a person's freedom of
speech and expression comes up. Rather it should be celebrated by each
citizen productively.
II International perspective of freedom of expression
Freedom of speech and expression is guaranteed by several
constitutions in the world, through various provisions like the first and
fourteenth amendments to the Constitution of United States, section 18
(1)(e)(f)(g) of the Constitution of Sri Lanka, and 50 and 51 of the
Constitution of the USSR .
Not only constitutions but international conventions have also stated
the freedom of speech and expression as an integral fundamental right to
be provided to citizens. Articles 13, 20, 23, 29 of the Universal
Declaration of Human Rights, 1948, article 22 of the International
Covenant on Civil and Political Rights, 1966, article 11 of the European
Convention on Human Rights, 1950, and articles 6 and 12 of the
International Covenant on Economic, Social and Cultural Rights, 1966
suggest that countries must ensure free expression of opinions by their
citizens, free movement of individuals, and must provide them with
freedom of expression.
Article 10 of the European Convention on Human Rights, 1950
provides that:
(1) Everyone has the right to freedom of expression. This right shall
include freedom to hold opinion, to receive and impart information
and ideas without interference by the public authority and regardless
of the frontiers. This article shall not prevent states from requiring
the licensing of broadcasting, television or cinema enterprise.
(2) The exercise of this freedom, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by the law and are
necessary in a democratic society, in the interest of national security,
territorial integrity or public safety, for the prevention of the disorder
Article 19-The Most Diverse Fundamental Right | 119
or crime, for the protection of health and morals, for the protection of
reputation or rights of the others, for preventing the disclosure of
information received in confidence or for maintaining the authority
and impartially of the judiciary.
Thus, all these international conventions recognise the importance
of expression, association and movement in an individual's life.
III Freedom of speech and expression is an integral
part of a democratic country
4 Freedom of speech is the bulwark of democratic government. In
5Maneka Gandhi v. Union of India , Bhagwati J. has emphasized on the
significance of the freedom of speech & expression in these words:
Democracy is based essentially on free debate and open
discussion, for that is the only corrective of government
action in a democratic set up. If democracy means
government of the people by the people, it is obvious that
every citizen must be entitled to participate in the democratic
process and in order to enable him to intelligently exercise
his rights of making a choice, free & general discussion of
public matters is absolutely essential.
The freedom is essential for the proper functioning of the democratic
process. The freedom of speech and expression is regarded as the first
condition of liberty. It occupies a preferred position in the hierarchy of
liberties giving succour and protection to all other liberties. It has been
truly said that it is the mother of all other liberties. Shastri J.observed in 6
Romesh Thappar case that “freedom of speech and press lay at the
foundation of all democratic organisations, for without free political
discussion, no public education, so essential for the proper functioning of
the process of popular Government, is possible.”
4 th M.P.Jain, Constitution of Indiaal Law (Kamal Law House, Calcutta, 5 edn., 2003). 5 AIR 1978 SC 597.6 Romesh Thappar v. State of Madras , AIR 1950 SC 124.
120 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
The democracy is a government by the people and flourishes via
open discussion. The democracy can neither work nor prosper unless 7people go out to share their views. It is the best way to find a trust model
of anything, since it is only through it that the widest possible range of
ideas can circulate. It is the only vehicle of political disclosure essential to
democracy. Political democracy, the foundation of which is free election ,
based on appeal to reason, cannot function in a society where there is no 8freedom of speech. It is thus indispensable for the operation of the
9democratic system, which is based on free debate and open discussion,
10for that it is the only corrective of government action, and one which
11envisages changes in the composition of legislatures and governments.
It is of no doubt that our Constitution as well as our judicial
precedents have upheld the importance of expression in our country. But,
the circumstances surrounding us makes us ponder whether this liberty of
expression is being enjoyed freely. It is important and essential for the
people in this country to understand that it is an artist's or a director's
freedom to portray his story in the way he wants. Threatening those artists
or banning those works are violation of the Constitution of our country.
Each individual is different, their versions of history or portrayal of god
men or women may be different, and we need to embrace this diversity
among us for the benefit of our country.
Freedom of speech and expression includes the right to convey ideas
Freedom of speech means the freedom to speak so as to be heard by
others, and therefore, to convey one's ideas to others. The very idea of
freedom of expression necessarily connotes that what one has a right to 12
express, may be communicated to others. In Secretary Ministry of
7 S Rangarajan v. P Jagjivan Ram, AIR1999 SC 2334.8 Tiger Muthiah v. State of Tamil Nadu, 2000 (1) CTC 1.8 Bennett Coleman v. Union of India, AIR 1973 SC 106(138); Namboothiripad v. 9 Nambiar, AIR 1970 SC 2015; Ram v. State of Bihar, AIR 1975 SC 223.10 Maneka Gandhi v. Union of India , AIR 1978 SC 597.11 Sakal Newspapers v. Union of India, AIR 1962 SC 305.12 All India Bank Employees Association v. National Industrial Tribunal, AIR 1962 (2) SC 17; Nahhera Gopal v. State, (2001) 4 CTC 423(Mad); Tiger Muthiah v. State of Tamil Nadu,(2000) 1 MLJ 516.
Article 19-The Most Diverse Fundamental Right | 121
Information and Broadcasting, Govt of India v. Cricket Association of 13Bengal, after citing article 10 of the European Convention on Human
Rights, it was observed that the freedom of speech and expression
includes the right to acquire information and to disseminate it. The
freedom of speech and expression includes liberty to propagate not one's
views only, it includes the right to propagate or publish the views of other 14people. Thus, banning an author just because they has written about a
sensitive or religious issue, or banning a film just because it portrays a
certain historic character in a peculiar way, hampers the artistic license to
convey their ideas and thoughts to the public.
Freedom of speech and expression includes people's right to know
and the right to access information
The right to know relating to public affairs has been held as a basic 15
right. The right to receive information may be deduced as a counterpart
of the right to impart information, which is an ingredient of the freedom 16
of expression guaranteed by article19(a). In People's Union for Civil 17Liberties, the Supreme Court dealt with this aspect of the freedom
elaborately. The right of citizens to obtain information on matters, 18relating to public acts flows from article 19(1)(a). Securing information
on the basic details concerning the candidates contesting the elections to
parliament or the state legislature promotes the freedom of expression
and therefore the right to information forms an integral part of article
19(1)(a). The Right to Information Act, 2005 entitles every citizen to
have access to information controlled by public authorities. Under the
Act, it is obligatory upon the authority to provide information and
maintain records consistent with its operational needs. The object of the
Act is to promote openness, transparency and accountability in 19administration. In State of Uttar Pradesh v. Raj Narain, it was held that
13 AIR 1995 SC 1236. 14 Srinivas v. State of Madras, AIR 1931 Mad.15 R.P.Ltd. v. Indian Express, AIR 1989 SC 190; Indian Express v. Union of India, AIR 1986 SC 515.16 Nakkera Gopal v. State of Tamil Nadu, (2001) 4 CTC 423(Mad).17 People's Union for Civil Liberties v. Union of India , AIR 2004 SC 1442.18 PUCL v. Union of India, AIR 2003 SC 2363.19 AIR 1975 SC 865 at 884.
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article 19(1)(a) not only guarantees freedom of speech and expression, it
also ensures and comprehends the right of the citizens to know, the right
to receive information regarding matters of public concern. In Dinesh 20
Trivedi, M.P. v. Union of India, it was observed that, the right to
freedom of information in modern constitutional democracies includes
the right of citizens to know about the affairs of the government which,
having been elected by them, seek to formulate sound policies of
governance aimed at their welfare.
Even though our constitutional makers have analysed the
importance of citizens to get access to details of public offices and
officers, the public offices in our country are still way behind in
implementing them effectively. A large part of our population is still
unaware of the existence of such a right, while those who know and
invoke them often end up being ill-treated by the persons holding public
posts. A hand-in-hand approach of both the citizens and the people who
hold government posts must be there for the betterment of this country.
IV The freedom of speech and expression under article 19 (1) (a) is
not absolute and is subject to restrictions under article 19(2)
It is necessary to maintain and preserve freedom of speech and
expression in a democracy; however it is necessary to place some
restrictions on this freedom for the maintenance of social order, because
no freedom can be absolute or completely unrestricted. Accordingly,
under article 19(2) of the Constitution of India, the state may make a law
imposing “reasonable restrictions” on the exercise of the right to freedom
of speech and expression “in the interest of” the public on the following
grounds;
Security of state: Security of state is of vital importance and a
government must have power to impose restriction on the activity
affecting it. Under article 19(2), reasonable restrictions can be
imposed on freedom of speech and expression in the interest of
security of state. However the term “security” is very crucial one.
20 (1997) 4 SCC 306.
Article 19-The Most Diverse Fundamental Right | 123
The term “security of state” refers only to serious and aggravated
forms of public order e.g. rebellion, waging war against the state,
insurrection and not ordinary breaches of public order and public
safety, e.g. unlawful assembly, riot, affray. Thus speeches or
expression on the part of an individual, which incite to or encourage
the commission of violent crimes, such as murder, are matters,
which would undermine the security of state.
Friendly relations with foreign states: In the present globalised
world, a country has to maintain good and friendly relationship with
other countries. Something which has potential to affect such
relationship should be checked by government. Keeping this thing
in mind, this ground was added by the Constitution (First
Amendment) Act, 1951. The object behind the provision is to
prohibit unrestrained malicious propaganda against a foreign
friendly state, which may jeopardize the maintenance of good
relations between India, and that state.
Public Order: The expression 'public order' is synonymous with 21public peace, safety, and tranquillity. To illustrate, the state may
restrict the use of public streets or the purpose of exercising
freedom. Anything that disturbs public tranquility or public peace 22 23
disturbs public order. Thus, communal disturbance and strikes 24
promoted with the sole object of causing unrest among workmen
are offences against public order. Public order implies absence of
violence and an orderly state of affairs in which citizens can 25peacefully pursue their normal avocation of life. Public order
26includes public safety. Public safety means the safety of the
community from the external and internal dangers. Thus creating
internal disorder or rebellion would affect public order and public
21 Supdt., Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633.22 Om Prakash Emperor v. , AIR 1972 SC 1656.23 Noor Mohammad Rex v. , AIR 1949 All 120.24 Om Prakash Emperor v. , AIR 1948 Nag 199.25 Basudev v. Rex, AIR 1949 All 513(FB).26 Romesh Thapper v. State of Madras, AIR 1950 SC 124.
124 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
27 safety. Under article 19(2), a restriction can be imposed in 'the
interest of' public order. The expression 'in the interest of' gives a
greater leeway to the legislature to curtail freedom of speech and
expression, for a law penalising activities having a tendency to
cause, and not actually causing public disorder, may be valid as
being in 'the interests of public order'. In a landmark decision in 28Bharat Kumar, a full Bench of the Kerala High Court has declared
bandhs organised by political parties from time to time as
unconstitutional, being violative of the fundamental rights of the
people. The court refused to accept it as an exercise of the freedom of
speech and expression by the concerned party calling for the bandh.
When a bandh is called, people are expected not to travel, not to
carry on their trade, not to attend to their work .
Decency or morality: The way to express something or to say
something should be decent one. It should not affect the morality of
the society adversely. Our Constitution has taken care of this view
and inserted decency and morality as a ground. The words 'morality
or decency' are words of wide meaning. Sections 292 to 294 of the
Indian Penal Code provide instances of restrictions on the freedom
of speech and expression in the interest of decency or morality.
These sections prohibit the sale or distribution or exhibition of
obscene words, etc. in public places. No fixed standard is laid down
till now as to what is moral and indecent. In R.Y. Prabhoo v. 29
P.K.Kunte, the court held that the words decency and morality
includes every current standards of behavior or propriety.
Contempt of court: In a democratic country judiciary plays a very
important role. In such situation, it becomes essential to respect such
institution and its order. Thus, restriction on the freedom of speech
and expression can be imposed if it exceeds the reasonable and fair
limit and amounts to contempt of court.
27 Brij Bhushan v. State of Delhi, AIR 1950 SC 129.28 Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Ker 291.29 AIR 1996 SC 1113.
Article 19-The Most Diverse Fundamental Right | 125
Defamation: One's freedom, be it of any type, must not affect the
reputation or status another person. A person is known by his
reputation more than his wealth or anything else. The Constitution
considers it as ground to put restriction on freedom of speech.
Basically, a statement, which injures a man's reputation, amounts to
defamation. Defamation consists in exposing a man to hatred,
ridicule, or contempt.
Incitement to an offence: This ground was also added by the
Constitution (First Amendment) Act, 1951. Obviously, freedom of
speech and expression cannot confer a right to incite people to
commit offence. The word 'offence' is defined as any act or omission
made punishable by law.
Sovereignty and integrity of India: To maintain sovereignty and
integrity of a state is prime duty of government. Taking this into
account, freedom of speech and expression can be restricted so as
not to permit anyone to challenge sovereignty or to permit any one to
preach something which will result in threat to integrity of the
country.
From above analysis, it is evident that grounds contained in article
19(2) show that they are all concerned with national interest or the
interest of the society. The first set of grounds i.e. the sovereignty and
integrity of India, the security of the state, friendly relations with foreign
States and public order are all grounds referable to national interest,
whereas, the second set of grounds i.e. decency, morality, contempt of
court, defamation and incitement to an offence are all concerned with the
interest of the society.
Even though these restrictions are only to be exercised by the
government, we often see people taking law into hands protesting and
harassing the artistic license and freedom of other citizens, thus creating
chaos in the society. We belong to a country where our spiritual values
respect all religious equally, let's not allow a set of religious fanatics to
hamper our freedom of expression by making all issues religiously
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sensitive, and making us live in an atmosphere where our liberty of
speech itself will be curtailed.
V Conclusion
Expression through speech is one of the basic guarantees provided
by civil society. However, in the modern world right to freedom of speech
and expression is not limited to express ones' view through words but it
also includes circulating one's views in writing or through audiovisual
instrumentalities, through advertisements and through any other
communication channel. It also comprises of right to information,
freedom of press, etc. It is a right to express and self realization. Two big
democracies of world i.e. America and India have remarkably protected
this right. As far as India is concerned, this important right is mentioned
in article 19(1)(a), which falls in fundamental rights category. Indian
courts have always placed a broad interpretation on the value and content
of article 19(1)(a), making it subjective only to the restrictions
permissible under article 19(2).
Freedom of speech and expression is indeed the most important of
all freedoms. However, today, this right is being routinely suppressed
under the guise of morality and decency or public order. Even a slight
criticism of a public leader or past king causes the political parties to
involve in damage of public property. Any book that talks about problems
in a religion is banned in the name of public order. It is extremely
unfortunate that the executive, instead of the upholding peoples' right to
speech and expression by preventing unscrupulous element from hurting
the author, is more interested in stifling the voice by banning their works.
Being the citizens of one of the largest democracies in the world, this
freedom of speech and expression must be exercised to bring about
radical changes and reforms in our society. We must understand and
propagate the notion that we are a country where we celebrate unity in
diversity and every person must be given their freedom to portray or
depict or express their opinions and thoughts and let us celebrate the
individuality of this incredible country .
Article 19-The Most Diverse Fundamental Right | 127
NEED FOR EXTENDING THE BASIC
STRUCTURE DOCTRINE: JUDICIAL REVIEW
OF ELECTION DISPUTES*Harsh Vardhan Tiwari
**Bharat
Abstract
The main objective of article 329(b) of the Constitution of India is to impel the jurisdiction of all courts in respect to election disputes and aimed at establishing a separate and independent body to try such cases, apparently prescribing the manner, grounds, and stage at which challenge to an election could be urged. The non-obstante clause unambiguously suggests that those grounds cannot be discussed in any other manner and at any other point before any other court. The paper discusses at length, how gradually courts have bypassed the blanket ban on litigative challenges put forth by article 329(b), and have extended their jurisdiction, original as well as appellate, on election disputes which were also one of the major concern behind the abandonment of election tribunals. The paper critically analyses intent of the Supreme Court behind such active interpretation of the key constitutional provision, and as to why the long-term ramifications of such approach shall be considered while exercising such extraordinary jurisdiction by the courts.
I Introduction
DEMOCRACY IS one of the basic inalienable features of the
Constitution of India and forms part of the basic structure of the 1
Constitution. In a democratic polity, 'election' is the mechanism devised
to mirror the true wishes and the will of the people in the matter of
choosing their political manager and their representatives who are
supposed to echo their views and represent their interest in the 2legislature. Free, fair, reasonable and unbiased elections are the
assurance of a democratic nation. The word “election” used in Part XV of
the Constitution implies, the entire process of election commencing with
* th 5 year student, B.A. LL.B, Rajiv Gandhi National University of Law, Punjab.** st 1 year student, B.A. LL.B, Rajiv Gandhi National University of Law, Punjab.1 Kesavnanda Bharati v. State of Kerala, AIR 1973 SC 1461.2 Azhar Hussain v. Rajeev Gandhi, AIR 1986 SC 1253.
the instance of notification and terminating with the declaration of 3election result in favour of the candidate.
Elections in a nation represent the sovereignty of the people and aim
to provide legitimacy to the authority of the rulers i.e. government.
Therefore, free and fair elections are necessary for the success of any 4democratic institution. An effective mechanism is sine qua non for
having such election. For conducting, holding and completing the
democratic process, a potential law based upon requirements of the
society tested on the touchstone of the experience of times is concededly
of paramount importance. A balanced judicial approach in implementing 5
the laws relating to the franchise is mandatory.
According to article 329(b) of the Constitution of India, no election
either to the house of parliament or to the house of the legislature of a state
shall be called upon in any court, but in a specialised election tribunal
established for the purpose. For article 329(a), the orders made by the
Delimitation Commission regarding delimitation of constituencies and 6published in the Official Gazette, could not be agitated in a court of law.
The words notwithstanding anything in this constitution', makes it clear
that this clause overrides everything else in the Constitution and thus has 7
an overreaching effect both on the election and constitutional law. The 8
Supreme Court in Durga Shankar v. Raghuraj Singh observed:
The 'non-obstante' clause with which article 329 of the
Constitution begins and upon which the respondent's counsel
lays so much stress, debars us, as it debars any other court in
the land, to entertain a suit or a proceeding calling in question
any election to the parliament or the state legislature. It is the
3 N.P. Punnuswami v. Returning Ofcer, AIR 1952 SC 64; Hari Vishnu Kamath v. Ahmad Isaque, AIR 1955 SC 233; N.B. Khare v. Election Commissioner, AIR 1957 SC 694; Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.4 Sumandeep Kaur, “Electoral Reforms in India: Proactive Role of Election Commission” XLVI (49) Mainstream (2008).5 VS Achuthanandan v. PJ Francis and Anr, (1999) 2 LRI 200.6 th M.P. Jain, Constitution of Indiaal Law 819 (Wadhwa, Nagpur, 5 edn., 2007).7 Meghraj Kothari v. Delimitation Commission, AIR 1967 SC 669.8 Durga Shankar v. Raghuraj Singh, AIR 1981 SC 231.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 129
election tribunal alone that can decide such disputes and the
proceeding has to be initiated by an election petition and in
such a manner as may be provided by a statute.
However, the remedy in respect of election matters was held not to
be construed as extinguished by virtue of article 329(b), but it has to be
delayed till the election ends. Article 329(b) is a blanket ban on legal
proceedings to challenge electoral steps taken by the electoral machinery
for carrying forward the process of election and the only remedy to
challenge such steps on the basis of illegality, is an election petition to be 9
presented after the elections are over. Having regard to the important
functions which the legislatures have to perform in democratic countries,
it has always been recognised to be a matter of prime importance that
elections should be concluded as early as possible according to time
schedule, and all controversial matters and all disputes arising out of
elections should be postponed till after the elections are over, so that the 10
election proceedings may not be unduly retarded or protracted.
According to Representation of People Act, 1951, before the
Representation of People (Second Amendment) Act, 1956 (27 of 1956)
provided a separate election tribunal for looking into the disputes arising
from the elections. Section 81(1) of the Representation of People Act,
1951 provided that election petition cannot be filed in a court before the
result of the election. Section 105 of the Representation of People Act,
1951 provided no scope for judicial review of the decisions of these
election tribunals. The main objective of this enlisted provision was to
conduct the elections in due time and keep the election disputes out of the
purview of courts. It provided election tribunal so as to expedite the
resolutions relating to election law. However, judiciary through its
corpus of judicial review and judicial activism expanded its scope of
jurisdiction and has made an attempt to restructure the meaning of article
329(b).
9 Anand Ballabh Kafaltiya, Democracy and Election Laws 83 (Deep and Deep Publications, 2003).10 Supra note 3.
130 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
The paper delves into how courts have widened their horizon to
include both original and appellate jurisdiction on disputes relating to
election laws, and how article 226 has been so broadly interpreted so as to
include those petitions which were not earlier under its jurisdiction. It
also endeavours to show how Supreme Court interpreted the provisions
of the Constitution to remove restraints on election petition from being
entertained in the courts.
II Adding life to article 329(b): Judicial interpretation
The Supreme Court has tried to find a way to establish a balance
between the sweeping powers of the high court under article 226 of
Constitution of India and the limitations put on its power by virtue of
article 329(b) through its various landmark judgments on election laws. 11In N.P. Ponnuswami v. The Returning Ofcer, Namakkal Constituency,
the plaintiff filed a petition for writ of certiorari in the Madras High Court
under article but the court refused to intervene, holding that article 329(b)
barred its jurisdiction to interfere in electoral matters and decided that
high court can't interfere in the electoral matters till the election is over.
The Supreme Court also supported the decision and enunciated the
constitutional position and mandate that court cannot interrupt the
electoral process till it is completed and the results are duly declared. The
Hon'ble Court established certain principles:
The question now arises whether the law of elections in this
country contemplates that there should be two attacks on
matters connected with election proceedings, one while they
are going on by invoking the extraordinary jurisdiction of the
high court under article 226 of the Constitution, and another
after they have been completed by means of an election
petition. In my opinion, to affirm such a position contrary to
the scheme of part XV of the Constitution and the
Representation of People Act. Any matter which has the
effect of vitiating an election should be brought up only at the
11 Supra note 3.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 131
appropriate stage in an appropriate manner before a special
tribunal and should not be brought up at an intermediate stage
before any court. If the grounds on which an election can be
called in question could be raised at an earlier stage, and
errors, if any, are rectified, there will be no meaning in
enacting a provision like article 329(b) and in setting up a
special tribunal. Any other meaning ascribed to the words
used in the article would lead to anomalies, which the
Constitution could not have contemplated, one of them being
that conflicting views may be expressed by high court at the
pre-polling stage and by the election tribunal, which is to be
an independent body, at the stage when the matter is brought
up before it.
The principles enunciated in N.P. Ponnuswami are still held
sacrosanct and has been reiterated in a number of cases. The view was
further elucidated in Mohinder Singh Gill v. Chief Election 12Commissioner and Ors. In this case, a constitutional bench expanded
the bar on courts to issue writs challenging re-poll as it is coupled with the
election. This case established article 329(b) as a blanket ban on litigative
challenges, in the courts, to electoral steps taken by the Election
Commission and its officers for carrying forward the process of election 13
to its culmination in the formal declaration of results. It also interpreted
the term 'election' and gave it a wider interpretation so as to denote period
from the presidential announcement calling upon the voters to elect and
climaxing in the final declaration of the returned candidate. The plenary
bar of article 329(b) rests on the peremptory urgency of prompt
engineering of the whole election process without intermediate
interruptions by way of legal proceedings challenging the steps and 14stages in between the commencement and the conclusion.
12 AIR 1978 SC 851.13 Ibid.14 Ibid.
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Electoral rolls, one of the most indispensable aspects of elections,
have also witnessed conflicting views as to whether they form part of
elections under article 329(b) or not. The Hon'ble Supreme Court held,
the preparation, revision and correction of electoral rolls as a stage 15 16
anterior to the election. Stepping further in Indrajit Barua, the
Supreme Court held that where an election has been held on the basis of
an electoral roll, issue of the validity of the election cannot be raised on
the ground that the electoral roll was defective. However, where it is
alleged in the election petition that any name has been included in or
deleted from an electoral roll after the last date of making nominations
when the roll becomes final under section 23(3) of the Representation of
People Act, 1950, the high court has the jurisdiction to go into that
question to determine whether any vote has been improperly accepted or 17rejected.
III Supreme Court and its judicial agility: Adding wings to the
clamour of article 226
Although the Hon'ble Court in its previous decision clearly
restrained courts from interfering in electoral matters till the election
proceedings were over, it should be noted that the Hon'ble Supreme Court
differed from its own decision given in Ponnuswami's case, in the case of 18
K. Venkatachalam v. A. Swamickan. In the latter case, the petitioner was
not in a position to challenge the election of the appellant since the
limitation period had expired before the allegations against the appellant
were discovered. Later, a writ was filled in the Madras High Court under
article 226 and it was held that appellant was not qualified to be the MLA
of Tamil Nadu. The appellant filed an appeal in the Supreme Court raising
his right to be an MLA. The contention before the Supreme Court was
that the Madras High Court didn't have jurisdiction over the writ petition
15 Lakshmi Charan Sen v. AKM Hassan Uzzaman and Ors., AIR 1985 SC 1233.16 Indrajit Barua and Ors v. Election Commission of India and Ors., AIR 1986 SC 103.17 Baidyanath Panjiar v. Sita Ram Mahto, AIR 1970 SC 314; Kabul Singh v. Kundan Singh, AIR 1970 SC 340 (India); Narendra Madivalapa Kheni v. Manikarao Patil and Ors., AIR 1977 SC 2171.18 AIR 1955 SC 233.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 133
because it falls under article 329(b). However, the Supreme Court upheld
the jurisdiction of the high court in the instant case giving article 226
widest amplitude, especially in cases where alternative could not be had
to the provisions of the suitable Act or statute. The court also held that
article 329(b) will not come into force when the case falls under article 19191 and 193.
The Hon'ble Supreme Court leaped further to widen the scope of 20jurisdiction under article 226 in Manda Jaganath v. K.S. Rathnam, and
observed that erroneous actions which are amenable to correction in the
writ jurisdiction of the courts should be such as had the effect of
interfering with the free flow of the scheduled election or hinder the swift
progress of the election which is of paramount consideration. However, it
held, if by an erroneous order, conduct of the election is not hindered,
then the courts under article 226 of the Constitution should not interfere
with the orders of the returning officers, the remedy for which lies in 21
election petition only. The Supreme Court has further exaggerated the
role of courts in entertaining election disputes holding that the
proceeding has to be initiated by an election petition and in any manner as
provided by the statute, but once the tribunal had made any determination
or adjudication on the matter, the powers of this court to interfere through 22
special leave can always be exercised under article 136.
23 In the landmark judgment, Hari Vishnu Kamath v. Ahmad Ishaque,
in regard to high court's jurisdiction to entertain election disputes, the
Supreme Court held that once the proceedings have been instituted in
accordance with article 329(b) by presentation of election petition and
the constitutional requirement has been fully satisfied, the trial of the
election petition by the election tribunal was subject to the general law
and supervision of high court.
Increasing judicial activism changed the judicial attitude of the 19 Supra note 18.20 AIR 2004 SC 3600.21 Ibid.22 Supra note 8.23 AIR 1955 SC 233.
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Supreme Court, in Election Commission of India v. Ashok Kumar and 24Ors. evolved a new era and laid down the foundation for the gradual
tectonic shift in the court's approach to election matters. The Hon'ble
Supreme Court carved out certain exceptions in the sweep of article
329(b) and it laid down as to when high court could intervene in electoral
matters in the exercise of their writ jurisdiction under article 226. The
apex court determined that any decision sought and rendered will not
amount to 'calling into question an election' if it subserves the progress of
the election and facilitates the completion of the election. It added that
anything done in furtherance of the election proceedings cannot be 25
described as questioning the election. The court went further on to state
that judicial intervention is available, but without interrupting,
obstructing or delaying the progress, if assistance of the courts has been
asked merely to correct or smoothen the proceedings of the election, to
remove the hindrance therein, or to preserve a vital piece of evidence if
the same would be lost or destroyed or rendered irretrievable by the time
the results are declared and the stage is set for invoking the jurisdiction of 26 the court.
The court, revealing the irretrievable injustice caused to the 27
petitioner in Sarvothama Rao v. Chairman, Municipal Concil, Saidapet
observed:
I am quite clear that any post-election remedy is wholly
inadequate to afford the relief which the petitioner seeks,
namely, that this election, now published, be stayed, until it
can be held with himself as a candidate. It is no consolation to
tell him that he can stand for some other election. It is no
remedy to tell him that he must let the election go on and then
have it set aside by petition and have a fresh election ordered.
The fresh election may be under altogether different
24 AIR 2000 SC 2979.25 Ibid.26 Subhash Son of Rohtas v. State of U.P, 2007 (3) AWC 2561.27 (1923) 45 MLJ 23.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 135
conditions and may bring forward an array of fresh
candidates.
IV Fading clout of election tribunals
With the enactment of the constitution, which made India as
sovereign, democratic, republic, right to vote in form of universal adult
franchise gave equal status to all the Indian citizens. Subsequently,
Representation of People Act, 1950 which came into force on 12th May
1950, and Representation of People Act, 1951 were passed which
provided for allocation of seats, qualification of voters, the preparation of
electoral rolls and an authority to adjudicate the issues involving election
matters in form of election tribunal. Initially, provisions were made in 28section 86 of the Representation of People Act, 1951, for the
appointment of an election tribunal by the election tribunal to try
petitions calling in question any parliamentary election or any
legislatures within Indian territories, and the election commission under
article 324(1) was provided power to supervise election tribunals.
The next important contention before the Hon'ble Supreme Court
was whether the high court under its wide sweeping authority under
article 226 could issue writ contrary to the verdicts of the election
tribunals as they were under its territorial jurisdiction. It was argued that
since the election tribunal became functus ofcio after they pronounce the
decision, therefore, they did not come under article 226. However, the
Supreme Court held that if the true meaning of article 226 is construed the
high court have power under article 226 to issue writs of certiorari for
quashing the decisions of the election tribunal, notwithstanding that they 29
become functus ofcio after the election. election tribunals were also
held to be under the superintendence of the high court, both judicial and 30administrative, under article 227 of the constitution. Gradually, the
courts have assumed appellate jurisdiction over electoral matters,
28 Representation of People Act, 1951, s. 86.29Supra note 23.30Waryam Singh v. Amarnath and anr., AIR 1954 SC 215.
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however, this view of the Supreme Court was in total contrast to section 31100 of the Representation of People Act, 1951 which stated that the
decisions of the election tribunal will be final and binding.
The experience of the Election Commission showed that the system
of election tribunals was not functioning smoothly and the trial of
election petitions by the election tribunals was getting inordinately
delayed, as even the interlocutory guidelines of the tribunals were being
faced up to before the high court under their writ jurisdiction under
articles 226 and 227 and, in many cases, further before the Supreme
Court by way of appeals against high court orders.
32 By Hari Vishnu Kamath case, it was also held that once the
proceedings for an election petition proceeded in the election tribunals,
thereafter, the constitutional embargo created by article 329(b) would not
be attracted, and election tribunals were under both judicial and
administrative supervision of the respective high court under article 227.
Hence, over election matters, both the Supreme Court (under article 136)
and high court (under article 226) assumed its exceptional jurisdiction
over disputes regarding election matters. High courts were given formal
appellate jurisdiction over election matters when Representation of the 33
People Act, 1951, was amended in 1956. Therefore, a three-tier system
came into force to try election petitions which eventually took a long time
to resolve election disputes. Under such circumstances, the Election
Commission, for expediting the disposal of election petitions
recommended that the cases of election petitions should be given to the
high court instead of the election tribunals.
In furtherance, Constitution (Nineteenth Amendment) Act 1966 was
passed amending article 324(1), taking away the jurisdiction of the
Election Commission to appoint election tribunals, and Representation 34of the People (Amendment) Act 1966 inserted section 80A, providing
31 Representation of People Act, 1951, s. 100.32 Supra note 23.33 Representation of the People Act, 1951.34 Representation of the People (Amendment) Act 1966.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 137
that high court should have jurisdiction to try an election petition. Further 35article 329A was also deleted by the Constitution (Forty-fourth
36Amendment) Act, 1978 providing for all petitions to be filed only before
the high court. The current status is that election petitions are directly to 37
be entertained by the high court from where an appeal may be taken to
the Supreme Court under articles 132, 133, 136.
V The jurisdiction of the high court post the array of amendments:
An outline
Array of amendments to the Constitution includes seizure of power
from election commission to appoint election tribunals and direct
entrustment of election petitions to high court under section 80A of the 38Representation of the People Act puts forth a serious concern, up to what
extent article 329(b) of the Constitution of India overrides the high court's
jurisdiction in entertaining election disputes. Article 329(b) has for long
remained a debated contention. Provisions of Representation of the 39
People Act, 1951 and articles of the Constitution of India read in
consonance provide a remedy for any unfair means during the election
process. They do not totally exclude the right of a citizen to approach the
court so as to have the wrong done remedied, nevertheless the lesson is
that the election rights and remedies are statutory, trifles even if there are
irregularities and illegalities shall be ignored till the election proceedings 40in question are over. The non-obstante clause under article 329(b)
though automatically eliminates the high court's jurisdiction under article
226 in dispute calling into question an election including the conduct
thereof, but it does not extinguish the remedy, it only postpones the
remedy to the post-election stage.
35 Art. 329A.36 Constitution (Forty fourth Amendment) Act, 1978.37 H. P. Mulshankar Trivedi v. V.B. Raju, AIR 1973 SC 2602.38 Supra note 33 at s. 80A.39 Ibid.40 Bharamraj S. Parmaj v. The State of Karnataka, ILR 2006 KAR 2896.
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By analysing the different judgments given by the Supreme Court, the
jurisdiction of high court can be summarised thus:
If an election (the term being widely interpreted so as to include all
steps and entire proceedings commencing from the date of
notification of election till the date of declaration of results) is to be
called in question, and if such questioning may have an effect of
interrupting, obstructing or protracting the election proceedings in
any manner, the invoking of judicial remedy has to be postponed till 41
after the completing of proceedings in election.
Any decision sought and rendered will not amount to “calling in
question an election” if it subserves the progress of election and
facilitates the completion of the election. Anything done towards
completing or in furtherance of the election proceedings cannot be 42
described as questioning the election.
Subject to the above, the action was taken or orders issued by the
Election Commission are open to a judicial review of decisions of
statutory bodies such as, a case of mala de or arbitrary exercise of
power being made out or the statutory body being shown to have 43
acted in breach of law.
Without interrupting, obstructing or delaying the progress of
election proceedings, judicial intervention is available if assistance
of the court has been sought merely to correct or smoothen the
progress of the election proceedings, to remove the obstacles
therein, or to preserve a vital piece of evidence if the same would be
lost or destroyed or rendered irretrievable by the time the results are
declared and the stage is set for invoking the jurisdiction of the 44court.
41 Supra note 23.42 Ibid.43 Ibid.44 Ibid.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 139
The court must be very circumspect and act with caution while
entertaining any election dispute though not hit by the bar of article
329(b) but brought to it during the pendency of election 45
proceedings. Care has to be taken to see that there is no attempt to
utilise the court's indulgence by filing a petition, which is outwardly
innocuous but essentially a subterfuge or pretext for achieving an 46ulterior or hidden end.
High court shall have jurisdiction wherein the relief sought may not
restrict or interfere the election proceedings but the jurisdiction of
the court is invoked so as to correct the election process taking care
of such aberrations, as failing to such step, it may result in stopping 47or breaking the election process.
VI Conclusion
The judicial review being a basic feature of the Constitution of 48
India gives Supreme Court wide jurisdiction to interpret the
Constitution and other different statutes of the country. Extensive
analysis of different case laws makes it quite evident that though article
329(b) of the Constitution bars courts from entertaining any disputes
regarding election matters, but the courts have effectively implicit writ
jurisdiction in election disputes. Moreover, all the election petitions, state
and union legislature, filed under sections 80 and 80A of the 49Representation of the People Act, 1951 are under exclusive high court
jurisdiction, but the legislative intent of the constitutional forefathers
behind article 329(b) were well reflected, e.g. if any irregularities are
committed while election is in progress and they belong to the category or
class which, under the law by which elections are governed, would have
the effect of vitiating the “election” and enable the person affected to call
it in question, they should be brought up before a special tribunal by
45 Supra note 23.46 Ibid.47 Ibid.48 Minerva Mills v. Union of India, (1980) 3 SCC 625.49 Supra note 33 at s. 80 and s. 80A.
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means of election petition and not made the subject of a dispute before 50any court while the election is in progress. The court also explicated that
this court finds, howsoever, no connotation in legislating article 329(b) if
the grounds on which an election proceedings can be called in question
could be raised at any preceding stage and inaccuracies, in any, are
corrected.
However, in light of above grounds, it is needless to say that due to
the sensitive and extraordinary nature of the power exercised by the
courts, it is mandatory for the courts to act with extra care and great
reluctance and shall refrain from doing so as far as possible except on a
clear and strong case for its intervention has been made out by raising the
pleas with particulars and precision and supporting the same by 51necessary material.
Even though the courts have this implicit jurisdiction in the best ever
connotation 'interest of justice', the long-term ramifications of such
activism must be considered. The debate is broadly framed with respect
to ensuring an effective instrument 'separation of powers' that is the
lifeline of the Indian constitutional framework. It puts forth a question as
to the legitimacy of separation of power between the legislature, the
judiciary, and the executive, as well as concerns about the legitimacy of
judicial interventions in the long run.
Another negative postulate of high court assuming jurisdiction in
election matters is its detrimental effect on the expeditious disposal of
cases. Section 86 and section 87 of the Representation of the Peoples Act,
1951, provides that the high court shall make an endeavor to dispose of an
election petition within six months, from the date when it is presented,
and also as far as possible conduct proceedings of the election on day to 52day basis. The extensive backlog of cases and overburdening of Indian
legal system is no more an unknown fact, jurisdiction in election matters
have further added to this burden. In practice, however, cases involving
50 Supra note 10.51 Supra note 5.52 Supra note 33 at s. 86 and s. 87.
Need for Extending the Basic Structure Doctrine: Judicial Review of Election Disputes | 141
election petition are seldom seen to be timely resolved. According to the
report 'Ethics in Governance' of the Second Administrative Reforms
Commission, “such petitions remain pending for years and in the
meanwhile, even the full term of the house expires, thus rendering the 53
election petition infructuous.” The commission in its report, 'Ethics in
Governance, recommended in detail that “special election tribunals
should be constituted at the regional level under article 329(b) of the
Constitution to ensure speedy disposal of election petitions and disputes 54
within a stipulated period of six months”.
Moreover, if we analyse section 100 of the Representation of the 55
People Act, 1951, before 1966, it stated that the orders of election
tribunal shall be final to ensure expeditious disposal of election disputes,
considering the important functions delivered by the legislature, but the
gradual encroachment by courts in election matters seems to have failed
the legislative intent. The main objective of making the judicial review as
the backbone of the Constitution was to eliminate the legislative
intricacies and to give a clear picture of the constitution, or statute.
Considering the importance of election matters, it is humbly submitted
that the concept of election tribunals as envisaged before 1966 was the
most successful method of resolving disputes in election matters. Article
329(b) also substantially deals with the requisite behind a judicial
tribunal to deal with disputes arising out of or in connection with 56elections.
Detailed analysis of the issue has made it quite clear that the courts
now actively exercise jurisdiction over electoral disputes even in the
intermediary stage of the electoral process, though exclusively barred by
article 329(b), but the courts must ensure that while exercising such
extraordinary jurisdiction they must not interfere with the formation of
the legislature, considering the important purpose it serves.
53 Background Paper on Electoral Reforms, Legislative Department Ministry of Law and Justice, Government of India, 31.54 Ibid.55 Supra note 33 at s. 100. 56Supra note 12.
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THE CONSTITUTION OF INDIA ON UNIFORM
CIVIL CODE: LOOKING BEYOND THE
INTERESTED REGIMES*Divyanshu Chaudhary
Abstract
The Uniform Civil Code under article 44 of the Constitution bestows a neutral concept wherein it enshrines the strong idea of uniform legislation throughout the territory of India irrespective of any proclivity towards specific religion; this, in this way, ensures the equality and non-discriminatory treatment of any citizen in the country while nurturing the idea of harmony and stability in the society nullifying the dominion of a particular group of society or their discriminatory personal practices. Therefore, having this background into consideration, the authors, while regarding the various developments and discussions attached with Uniform Civil Code, are strived to look into and examine the possible measures which can be taken to implement uniform civil code in India leaving the personal spheres, stretching upon the situations which are to be tackled with. This paper is also proposed to scrutinize and explore the various judgments of the Supreme Court in this regard (e.g. Shah Bano case, Sarla Mudgal case, Lily Thomas case & Danial Lati case etc.); merits and demerits of the concerned cases shall be discussed with regard to the concept of Uniform Civil Code with the prevailing current scenario in India in this regard. In the proposed paper, the authors are strongly inclined for advocating the urgent need for its implementation providing the conclusion with appropriate recommendations on the basis of the findings throughout the research paper.
I Introduction
IT IS a matter of regret that article 44 of our Constitution has
remained a dead letter. It provides that the state shall endeavour to secure
a Uniform Civil Code (hereinafter UCC) for the citizens throughout the
territory of India. There is no evidence of any official activity for framing
a UCC for the country. A belief seems to have gained ground that it is for
the Muslim community to take a lead in the matter of reforms of their
personal law. A common civil code will help the cause of national
integration by removing disparate loyalties to laws, which have
* th 5 year student, B.A. L.L.B. (Hons.), School of Law, Galgotias University, Greater Noida.
conflicting ideologies. No community is likely to bell the cat by making 1gratuitous concessions on this issue.
The above observation of Y. V. Chandrachud, C.J., in Shah Bano
case may altogether be adopted in order to understand the importance of
immediate implementation of UCC in India. As the Constitution of India
chooses for a secular state (neutrality towards religion) where all citizens
have equal rights and safeguards whether in the form of fundamental
rights or in directive principles of state policy; the preamble also
guarantees every citizen the equality in justice, promotes unity and
integrity of the nation by ensuring the individual dignity. Therefore, the
law governing the personal matters such as marriage, divorce,
maintenance, guardianship, adoption, inheritance, and succession which 2at present is determined by one's religion must also be the same as to
promote integration and unity of the nation and to endure equality
amongst citizens circumventing all kind of indiscrimination against a
particular religion that is happening in the present system.The voice for
UCC has been rising from a long time back in order to give life to article
44, that reads as, "the State shall endeavour to secure for the citizens a 3UCC throughout the territory of India".
The Constitution of India came into force in 1950 and since then,
article 44 has been gathering dust with no government at the centre ever
having any guts and wisdom to touch it. Figuratively speaking, it has 4remained a dead letter. It is more than half-a-century since article 44, was
enacted but successive governments have not shown the necessary 5
gumption and courage to act upon it and the only way to carry out the
legislation depends upon the will and the competence of the legislature
that is what the judiciary has many a time observed in various cases
1 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.2 Gerald James Larson (ed.), Religion and Personal Law in Secular India: A Call to Judgment 104 (Indiana University Press, Bloomington, 2001). 3 Constitution of India, 1950, art. 44. 4 Shabbeer Ahmed, “Uniform Civil Code (Article 44 of the Constitution) A Dead Letter” 67 The Indian Journal of Political Science 3 (2006). 5 Leila Seth, “A Uniform Civil Code: Towards Gender Justice” 31 India International Centre Quarterly 4 (2005).
144 | LLOYDIANS - INTERNATIONAL STUDENT LAW REVIEW
before it. Therefore in order to fill the gaps in implementation of the 6personal matters because of different personal laws governing different
religions such as Hindus (including Sikhs, Jains and Buddhists),
Muslims, Christians, Parsis and Jews, Constitution of India recognizes a
UCC as one of the steps to achieve national integration by moving away
from the personal laws. Ambedkar, while addressing the Constituent
Assembly said that, 'I personally do not understand why religion should
be given this vast, expansive jurisdiction, so as to cover the whole of life 7
and to prevent the legislature from encroaching upon that field'. But at
present, the debate over a UCC appears hopelessly divided along both 8
political and religious lines that ultimately depicts today's society where
the religion, mixed with personal practices, has acquired high importance
generating hardships that it is, in the absence of a UCC, affecting the life
of individuals defying the goals enshrined in the preamble that are
equality, justice and the integrity of the nation.
Therefore, this paper is an attempt to cover all the problems involved
after examining the various constitutional facets involved; having this
note into account, this paper may be divided into: firstly, different
religions, their practices and ideologies; secondly, what is UCC, the
Constitution and its importance; thirdly, the legal battle for UCC;
fourthly, advantages of its implementation and hindrances which may be
faced and fifthly followed by the conclusion along with suggestions.
II Religions in Constitution: Their practices and ideologies
Each fundamentalism is a political and not a religious movement
based on an agenda of creating an exclusive realm where they can control 9
the citizenship. Preservation of religious personal laws into the post-
colonial era may have been necessary under the circumstances at
6 B. M. Gandhi., V. D. Kulshreshtha's Landmarks in Indian Legal and Constitutional History 298, 446 (1989).7 Deepa S. Reddy, Religious Identity and Political Destiny: Hindutva in the Culture of Ethnicism 170-171 (Alta Mira Press, Lanham, 2006).8 Shalina A. Chibber, “Charting a New Path toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code” 83 Indiana Law Journal 695 (2008).9 Supra note 5 at 53.
The Constitution of India on Uniform Civil Code: Looking Beyond the Interested Regimes | 145
independence, but their continuation into the twenty-first century has
caused injury to India's religious minorities as well as to Indian women of 10every religion. The Constitution of India bestows the idea of democratic
government while keeping its roots in a secular state. The state ensures
religion neutrality towards every citizen working towards the unity and
integration of the nation. However, India comprising of multicultural
societies professing and practising different religions and speaking
different local languages, coexist in harmony is one of the largest 11
democracies. India is imbued with diverse religions, and each religious
community has its own personal laws that govern marriage, adoption, 12
succession, and the like. Thus, it has been said that the genius of the 13Constitution of India is its secular ambiguity; it therefore protects the
religious rights of Hindus (including Sikhs, Jains and Buddhists),
Muslims, Christians, Parsis and Jews etc. People of different religion
have distinct religious practices and ideologies through which they
govern all their personal and family matters such as marriage, divorce,
maintenance, guardianship, adoption, inheritance, and succession. Such
right of religious practice and propagation is protected by the
Constitution of India by virtue of articles 25 to 28; article 25 provides that
all the persons are equally entitled to freedom of conscience and free 14
profession, practise and propagation of religion. However, it is notable
that the words “personal law” do not appear in any of the religious
provisions of the Constitution and the religious personal law is absent 15from the constitution, but it is persistent in Indian culture.
10 Supra note 4 at 701.11 Anil Malhotra and Ranjit Malhotra, “Hindu Law and Uniform Civil Code - the Indian Experience” International Survey of Family Law 101 (2007).12 K.G. Balakrishnan, An Overview of the Indian Justice Delivery Mechanism, Speech at International Conference of the Presidents of the Supreme Courts of the World, Abu Dhabi, March 23-24, 2008, 3, available at: http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf (last visited on September 29, 2017).13 James Chiriyankandath, “Creating a Secular State in a Religious Country': The Debate in the Indian Constituent Assembly” Commonwealth & Comp. Pol. 1 (2000).14 Supra note 3 at art. 25 (1).15 Supra note 4 at 699.
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Then also by virtue of rights conferred by the constitution, the
people belonging to different religions practice their own traditions,
customs and usages like Hindus are mainly governed by Hindu Marriage
Act, 1955, Hindu Succession Act, 1956, Hindu Minority and
Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956,
Indian Succession Act, 1925 and Special Marriage Act, 1954. To the
Muslims, the Muslim Personal Law (Shariat) Application Act, 1937,
Dissolution of Muslim Marriages Act, 1939, Muslim Women (Protection
of Rights on Divorce) Act, 1986 and Muslim Women (Protection of
Rights on Divorce) Rules, 1986 are applied and the rules envisaged in
Sharia are largely applicable. The Christian Marriage Act, 1872 applies
to the Christians in their personal matters of marriage and divorce and so
has been enshrined in The Parsi Marriage and Divorce Act, 1936 for 16 17Parsis. In India we,
instead of moving toward a secular, equality-based legal
system, the recognition of personal laws under the guise of
protecting minorities from a dominant majority culture
helped institutionalize patriarchal traditional practices that
disadvantage Indian women.
What is necessary to be extracted here is that Indian citizens are still
governed by their own personal laws which create chaos in the society as
many are overlooked because of the unfair provisions contained therein.
III UCC and its importance
The Civil Code of a nation is a set of rules that governs the personal
matters of the citizens which relating to marriage, divorce, adoption,
custody of children, inheritance, succession to property etc.; whereas a
common civil code will provide for the uniformity in the procedure to
16 Supra note 9 at 103-104.17 Pratibha Jain, “Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women's Rights in India” 23 Berkeley Journal of International Law 211-212 (2005).
The Constitution of India on Uniform Civil Code: Looking Beyond the Interested Regimes | 147
deal with the personal matters superseding the present ambiguities as Mr. 18Shabber Ahmed rightly observed that,
The Common Civil Code if enacted will deal with the personal laws
of all religious communities relating to the above matters which are all
secular in character of Indian state and to enhance fraternity of unity
among citizens by providing them with a set of personal laws which
incorporates the basic values of humanism.
Article 44 of the Constitution of India casts a duty upon the state in
the form of directive principle (directive principles) that the state shall
endeavour to secure for the citizens a UCC throughout the territory of 19India. If ever fulfilled, article 44 would almost certainly sound the end to
religious personal law, requiring all Indians to be governed by one secular 20 21civil code. Although directive principles are not enforceable in the
court of law, a secular and democratic state must give the weightage in
considering the implementation of such code in order to maintain the
same line status of the citizens that ultimately leads the nation towards
unification and integration. The provisions contained in part IV of the
Constitution are fundamental in the proper governance of the state and it
is the duty of state to enact laws after considering the directive principles.
Though directive principles are not justiciable they are as much part of
the Constitution as the fundamental rights and, therefore, they deserve as 22much attention and importance as the fundamental rights do.
Constitutionalism: Article 44, Preamble and part III
The Constitution of India grants religious freedom only to the extent
that religion does not conflict with the Constitution. When such a conflict
exists, the religious tradition must be modified. Those aspects of the
tradition that do conflict with the Constitution can be classified as secular,
18 Supra note 4.19 Supra note 3 at art. 44.20 Archana Parashar, Women and Family Law Reform In India: Uniform Civil Code and Gender Equality 261 (Sage Publications, California, USA 1992). 21 Supra note 3 at art. 37.22 M.P. Singh, “The Statics and the Dynamics of the Fundamental Rights and the Directive Principles - A Human Rights Perspective”5 SCC (Jour) I (2003).
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rather than religious, and removed outside the scope of the constitution's 23protection of religious freedom.
It is of common parlance, when we discuss article 44, to get 24
captivated towards the provisions of right to freedom of religion under
part III of the Constitution as they provide people the freedom to practice
their religion as they want. Article 25 of the Constitution of India
provides that all the person are equally entitled for the right freely to
profess, practice and propagate religion but such right is subject to public 25
order, morality and heath and to other provisions of this part. Article 26
of Constitution of India further enriches the former by empowering every
religious denomination or any section thereof with the freedom to 26manage its own affairs in matters of religion. It though strengthens the
idea of liberty to manage their own religious affairs but these provisions
are altogether required to be read and interpreted with the consonance of
articles 14, 15 and 21 of Constitution of India which respectively provide
for the equality before the law and equal protection of law, non-
discrimination by the state on ground of sex, religion, race, caste, sex etc., 27 right to life and personal liberty. It has been well observed that:
The argument that personal law is immune from the
intervention of the sovereign legislature is not sustainable.
The right to be governed by personal law was never
considered as part of the right to freedom of religion
guaranteed by article 25, of the constitution. Moreover,
freedom of religion guaranteed by article 25, is subject to
'other provisions of this part' which means it is subject to the
provisions contained in part III which contain guarantees of
the fundamental rights. Even if freedom of religion
23 P.B. Gajendragadkar, The Constitution Of India: Its Philosophy and Basic ndPostulates 19 (Oxford University Press, Oxford, 42 edn., 1969).
24 Supra note 3 at art. 25-28.25 Supra note 14.26 Supra note 3 at art. 26(b).27 S.P. Sathe, “Uniform Civil Code: Implications of Supreme Court Intervention” 30 EPW 2166 (1995).
The Constitution of India on Uniform Civil Code: Looking Beyond the Interested Regimes | 149
comprehends the right to be governed by personal law, it
does not cover the right to perpetuate denial of equality or
personal liberty to a section of people who are governed by
such personal law.
Moreover to this, the preamble to the Constitution also enshrines the
idea of a secular nation where everyone has right to be secured in matter
of justice including social, equality of status and of opportunity, 28individual dignity, unity and integrity of nation and it is of great
significance that the fundamental rights are to be interpreted in the light 29
of grand and noble vision as expressed in the Constitution. Therefore,
the right to freedom of religion under articles 25-28, cannot be construed
in isolation but the whole text must be given a wider interpretation in a
harmonious way that is the courts must expand the ambit and not 30
attenuate their meaning & content. Moreover, articles 13, 14 and 15
clearly render the women equal to men making the inconsistent part 31
(against the equality) void. Therefore, a UCC would suffice the purpose
of the existence of various provisions in Constitution as to render them
with a meaningful life.
Judiciary's stand on part III and part IV
The Supreme Court of India, in various pronouncements, has
observed that the directive principles are to be implemented and
construed taking the provisions of part III into consideration that is the
state is under an obligation to achieve the objectives envisaged without 32overriding the fundamental rights which are the basic rights available to
33a citizens; but the court held the priority of fundamental rights in case of
34 any conflict. The Supreme Court has also held that fundamental rights
28 Supra note 3 at Preamble.29 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.30 R.C. Cooper v. Union of India, (1970) 1SCC 248.31 Kirsten K. Davis, “Equal Protection for Women in India and Canada: An Examination and Comparison of Sex Equality Provisions in the Indian and Canadian Constitutions” 13 Arizona J Int.Comp. Law 31 (1996).32 State of Madras v. Champakam Dorairajan, AIR 1951 SC 228.33 Hartado v. People of California, 28 Led 232.34 In Re Kerala Education Bill, AIR 1958 SC 956.
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must be harmonized with the directive principles that make one of the 35basic features of the constitution. Therefore, article 44 of the
Constitution must be read with the corresponding provisions
enumerated in part III as directive principles provide guidance for 36
interpretation of fundamental rights as also the statutory rights. In many
of decisions the Supreme Court has given many directive principles the 37status of fundamental rights. It even held that the directive principles
38now stand at par with fundamental rights.
Philosophy and importance
The recognition of cultural rights and the application of religious
law in matters of personal law do not mean that all provisions of religious 39law are applicable. Therefore, the philosophy and importance of UCC
lies in the fact that it provides for the equality and unification of the
various religious affairs so that the essence of the constitutional
provisions can be in real sense carried out and for this motion people
should outgrow the notion given by the British that personal law was part 40of religion. “The history of the Constituent Assembly's debates on UCC
indicates no intention to force a UCC upon any community opposing it
but rather, the founders hoped that the change would lead members of 41
those communities to see that a UCC would serve their interests”. And
the concept of UCC in directive principles provides that there must be a
uniform and not necessarily a common law; the expressions 'uniform' and
'common' are usually used interchangeably but they altogether have
different connotations. Uniform used within article 44, suggests that
every community must be governed by uniform principles of gender
35 Minerva Mills v. Union of India, (1980) 3 SCC 625.36 Ashoka Smokeless Coal India(P) Ltd. v. Union of India, (2007) 2 SCC 640. 37 rd J.N. Pandey, Constitutional Law of India 463 (Central Law Agency, Allahabad, 3 edn., 2016).38 Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645. 39 Gary J. Jacobsohn, Apple of Gold: Constitutionalism in Israel and The United States 177-182 (Princeton University Press, Princeton, 1993).40 Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code 39 (Aligarh Muslim University Press, Aligarh, 1998).41Madhu Kishwar, Stimulating Reform, Not Forcing It: Uniform Versus Optional Civil Code (Manushi, New Delhi, 1995).
The Constitution of India on Uniform Civil Code: Looking Beyond the Interested Regimes | 151
justice and human justice; therefore each personal law must be critiqued 42from the perspective of social and gender justice. Therefore, India
should ultimately adopt a UCC and any argument that relies on the
intentions of India's founders must also acknowledge that they believed 43
the country should have one. Therefore, the importance can be well
extracted that the code is one which would not chop off the religious
rights of people but shall in a way regulate them; in this way the argument
like, “this Code is the harbinger of a western secularism, deeply atheist,
which does not suit a profoundly religious India whose secularism means 44
respect and protection of all religions” must be ignored. It can be
concluded that for citizens belonging to different religions and
denominations, it is imperative that for promotion of national unity and 45solidarity a unified code is on which there can be no compromise and the
government is under no constitutional obligation to maintain the system 46
of religious personal laws.
IV UCC: A sight at legal battle
47 In Sarla Mudgal v. Union of India, it was stated that:
Freedom of religion is the core of our culture ... But religious
practices, violative of human rights and dignity and
sacerdotal suffocation of essentially civil and material
freedoms, are not autonomy but oppression. Therefore, a
UCC is imperative both for protection of the oppressed and
promotion of national unity and solidarity.
The above observation of Kuldip Singh, J. shows how urgent the
need exists for insertion of UCC. However, in spite of no backing from
42 Supra note 24. 43 Srikanth Reddy, “What Would Your Founding Fathers Think? What India's Constitution Says-and What Its Framers Would Say-About The Current Debate Over A Uniform Civil Code” 41 The George Washington International Law Review 405 (2009-2010). 44 Olivier Herrenschmidt, “The Indians' Impossible Civil Code” 50 European Journal of Sociology (2009).45 Supra note 9 at 118. 46 Supra note 18 at 160. 47 AIR 1995 SC 1531.
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the side of legislature and executive, the judiciary has done a
commendable job in providing justice to the people who faced injustice
and discrimination in the society because of the different laws prevalent
and in most of the cases women are the scapegoats who are being
marginalized in this scenario as it has been rightly observed that, “the
Indian judiciary, especially the Supreme Court, in its role as the defender
of the constitution, has been the forerunner in protecting minorities and 48safeguarding the multicultural ethos of the polity”. The court held that it
49was competent to adjudicate on the essentials of any religious practice.
Therefore, the present scenario depicts the courts' power to interpret the 50
personal laws of India's religious communities.
There has been a plethora of cases wherein the Supreme Court has
gone into the highest depth to establish the need for the UCC but nothing
has been carried out by the legislature so far which is making the situation
more vulnerable; some of such cases are:
51 Durgah Committee v. Hussan Ali: The hon'ble court in this case
went on to recognize the right to freedom of religion and observed
that in order that the practices in question should be treated as part of
religion, they must be regarded by the said religion as its essential
and integral part….unless such practices are found to constitute an
essential or integral part of a religion, their claim for protection
under article 26, may have to be carefully scrutinized.
52 In Mohd. Ahmed Khan v. Shah Banu Begum, the Supreme Court
has widely expressed the need to enact a UCC while awarding the
maintenance to a Muslim wife under section 125 of Criminal
Procedure Code , 1973 it held that article 44, has been a dead letter
in the Constitution. Consequently it created agitation amongst the
48 P. Ishwara Bhat, “Constitutional Feminism: An Overview” (2001) 2 S.C.C. (Jour) 1, available at: http://www.ebc-india.com/lawyer/articles/2001v2a1.htm. (last visited on September 29, 2017).49 Mohammad Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.50 Abdul Jalil v. Uttar Pradesh, AIR 1984 SC 882.51 AIR 1961 SC 1402 at 1415.52 AIR 1985 SC 945.
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Muslims which led the government to pass Muslim Women's 53(Protection of rights on Divorce) Act, 1986. Autonomy of a
religious establishment was thus made to prevail over women's 54
rights and it effectively deprived Muslim women of the right to file 55
a maintenance petition under section 125, Cr.P.C. as the Act 56provided for no more maintenance from the husband.
57 In Sarla Mudgal v. Union of India, Kuldip Singh and R.M.Sahai,
JJ., directed the then Prime Minister to take a fresh look on article 44,
which is imperative for both the oppressed and promotion of
national unity and integrity removing the contradictions based on 58
ideologies; therefore asked the secretary to law ministry to file an
affidavit. Kuldip Singh, J., based his opinion on the ground that there
is no connection between religion and personal law in a civilized
society. The court also observed that polygamy is injurious to 'public
morals' and if some religion make it obligatory then the state can
prohibit it just as it prohibited the practice of sati in the interest of 59 public order. In this way the court also observed:
Where more than 80 percent of the citizens have already been
brought under the codified personal law there is no justification
whatsoever to keep in abeyance, any more, the introduction of the
UCC for all the citizens in the territory of India.
60 In Lily Thomas v. Union of India, the Supreme Court followed the 61same line & observed:
53 Zia Mody, Ten Judgements that Changed India 60 (Penguin India, New Delhi, 2013).54 Amita Dhanda and Archna Prashar, Engendering Law: Essays In Honour of Lokita Sarkar, 137 (Eastern Book Company, Lucknow, 1999).55 Madhavi Sunder, “Piercing the Veil” 112 Yale Law Journal, 1399 (2003).56 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 19 (Oxford University Press, Oxford, 2002).57 AIR 1995 SC 1531.58 Supra note 7 at 707.59 Supra note 47.60AIR 2000 SC 1650.61 Seval Yildirim, “Expanding Secularism's Scope: An Indian Case Study” 52 American Journal of Comparative Law 901 (2004).
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The desirability of UCC can hardly be doubted. But it can
concretize only when social climate is properly built up by
elite of the society, statesmen amongst leaders who instead of
gaining personal mileage rise above and awaken the masses
to accept the change.
62 In Danial Lati v. Union of India and John Vallamatton v. Union of 63India also, the Supreme Court has reminded the legislature of its
constitutional mandate under article 44 of the Constitution to
formulate a UCC, unifying all the diverse personal laws into one 64
single code which has again revived the battle for UCC. It is
therefore apparent how the judiciary is protecting the interest of
citizens under the umbrella of one legal system which can be well
concluded under various theories of pluralism such as that of 65 66
Pospisil's theory of legal levels, Smith's theory of corporations, 67
Ehrlich's theory of living law. Drawing a distinction between rules 68
for decision and rules of conduct and Sally Moore's concept of 69 70semi-autonomous social field, the Court concludes that:
Legal pluralism is an attribute of a social field and not of law
or a legal system. A descriptive theory of legal pluralism
deals with the fact that in a given field law of various
provenances may be operative. It is when in a social field
more than one source of law, more than one legal order, is
observable, it is then that the social order of that field can be
62 AIR 2001 SC 3262.63 AIR 2003 SC 2902.64 Krishnayan Sen, “Uniform Civil Code” 39 EPW 4196 (2004).65 Leopold Popisil, Anthropology of Law: A Comparative Theory (HRAF Press, New Haven, 1971).66 M. G. Smith, Corporations and Society (Transaction Publishers, New Jersey, 2017).67 Eugene Ehrlich, Fundamental Principles of the Sociology of Law (Transaction Publishers, New Jersey, 1962).68 Supra note 20 at 9. 69 S. P. Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul, New York, 1978).70 John Griffiths, “What is Legal Pluralism?” 24 Journal of Legal Pluralism & Unofcial Law 1 (1986).
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said to exhibit legal pluralism…Law is present in every
semi-autonomous social field, and since every society
contains several such fields, legal pluralism is a universal
feature of social organization…Legal pluralism is
concomitant of social pluralism: the legal organization of a
society is congruent with its social organization. Legal
pluralism refers to the normative heterogeneity attendant
upon the fact that social action takes place in the context of
multiple overlapping, semi-autonomous social fields, which
it may be added, is in practice a dynamic condition.
The above situation can be seen in India where enormous diversity
exists and India is not unique in having more than one legal systems or
laws operating within certain fields under the overall umbrella of a state 71
legal system willing to accommodate its social heterogeneity.
Therefore, UCC must be implemented so as to avoid the multiplicity of
legal systems that will ultimately prevent the conflict of interests of the
citizens.
72 In Shayara Bano v. Union of India, the Supreme Court has, in its
historical judgment, declared the practice of triple talaq
unconstitutional and arbitrary towards Muslim women. The court, 73
by the majority of 3:2, held that:
This being the case, it is clear that this form of Talaq is
manifestly arbitrary in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim man
without any attempt at reconciliation so as to save it. This
form of Talaq must, therefore, be held to be violative of the
fundamental right contained under article 14 of the
Constitution of India.
71 Supra note 20 at 10. 72 2017 SCC OnLine SC 963.73 Ibid.
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V Advantages of UCC
The following are the advantages which may be carried out by
implementation of UCC:
The Common Civil Code will bring uniformity in all the personal
laws governing matters like marriage, divorce, adoption,
inheritance, succession to property etc. reserving space for the
practices of all communities in a just manner.
The Code will mean the modernization and humanization of each
personal law. A uniform law would mean not necessarily a common
law but different personal laws based on uniform principles of equality of sexes and liberty of the individual.
Ambiguity which is created due to application of different laws
governing a social institution such as marriage (particularly in the
case of polygamy and divorce) can be taken away.
The UCC is required not only to ensure uniformity of laws between
communities, but also the uniformity of laws within communities 74ensuring equalities between the rights of men and women.
The continuous violation of article 14 to 18 especially against
women (as to discriminatory treatment in cases of marriage,
inheritance, guardianship, divorce, adoption and property relations)
can be prevented by its implementation as the present personal laws
are highly unjust.
By giving certain people special treatment, an uneasy division on the
basis of religion is being created. When even the law of the land is
not the same then how the state would preach equality. For this, the
UCC will serve the purpose.
In the words of Aung San Suu Kyi, “it is precisely because of the
cultural diversity of the world that it is necessary for different
nations and peoples to agree on those basic human values which will
74 F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” 50 EPW 32 (1995).
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75act as a unifying factor”.
There is complete uniformity in the penal laws of the country;
similarly there is an urgent need to rectify this uneven and higgledy-
piggledy situation so as to bring light in the lives if Muslim .76
womenfolk in India. One country and one law shall be the lodestar.
Polygamy is one of the biggest drawbacks in Muslim personal law
which many countries like Syria, Tunisia, Morocco, Pakistan, Iran
etc. have codified the personal law as they either totally prohibited it
or severely curtailed it to check its misuse and abuse of this repulsive
practice; therefore for this purpose the UCC will serve best.
One of the advantages of a UCC will be a proper notice period and
registration of the marriage. The ceremonies will become optional.
But parties can have ceremonies of their choice as a ritual, i.e.,
Hindu—Saptapadi; Muslim—Nikah; Christian—Church blessing, 77
etc..
It is no less than a tyranny for a secular state like India that even after
the presence of red carpet in the form of article 44, it, so far, has not
achieved UCC.
VI Hindrances in the implementation of UCC
Religion is the biggest barrier in implementation of UCC but what is
to be seen is that when one carries his religion or religious practices,
outside one's place of worship or private residence, he exceeds the limit 78of enjoyment of this freedom and therefore the religion strictu sensu
may be delinked from matters surrounding religion so as to enable the 79
ground for establishment of a common civil code for all citizens alike.
75Aung San SuuKyi, Empowerment for a Culture of Peace and Development, Address to the WCCD in Manila (Nov. 21, 1994), available at: http://www.ibiblio.org/freeburma/assk/assk3-2c.html (last visited on September 29, 2017).76 Supra note 17. 77 Supra note 5 at 49-50. 78 N. Kanakaraj, “Uniform Civil Code - A Challenge to Minority Rights?” 15 Cochin Uni L Rev, 198 (1991).
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Therefore, it is altogether important to have a sight on the hindrances
which the legislature may face in order to implement the code. The
following are possible hindrances:
The Muslims are not inclined to accept the change as it is based on
experience of history correctly argued that none other than the 80Prophet himself was capable of such a feat.
UCC can be brought out only when the communities sit together to
remove injustice from their personal laws which itself is a tough job
for the legislature as people are not inclined.
Muslims may not agree to follow the UCC as they contend sharia to
be the highest governing law which they also can not intervene with
but only God can.
The Muslim laws are very unjust towards the Muslim women.
Although they are getting justice by judiciary but the voice must be
raised out from the community as to effectively implement the UCC.
The Muslim community will stoutly oppose the implementation
supporting the violation of articles 25, 26 and 29 which Tulzapurkar, 81J., in his revealing study has convincingly proved to be
unsustainable since they are irrational, fallacious or invalid.
These are some of the discrepancies which may be faced while
implementing the UCC but emphasis must be put on the results intended
and the welfare of the civil society.
VII Conclusion
82 Injustice anywhere is a threat to justice everywhere. In Indian
society where the Constitution provides for the equality, justice and
79 Supra note 24. 80 Zafar Ahmed Khan, “Social Change and Matrimonial Relations with Special Reference to Muslim Law in India” Law and Social Change 63 (1979).81 Tulzapurkar, “Uniform Civil Code” 17 AIRJ 22 (1987).82 Martin Luther King Jr., Letter from Birmingham Jail, available at: https://web.cn.edu/kwheeler/documents/Letter_Birmingham_Jail.pdf. (last visited on September 29, 2017).
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dignity to all, the advocacy of discriminations (different personal laws)
under the guise of right to freedom of religion under articles 25 and 26, is
altogether unsustainable and it is the secular state (India) which has to
take care of all the sects in civil society while equally maintaining their
personal rooms; however the maintenance of such rooms must not
adversely affect the citizens who are, without any discrimination, equally
entitled to enjoy their rights which are enjoyed by their fellow brothers
and sisters.
It is pertinent here to mention that to implement UCC is not an easy
task for the legislature; however it is altogether imperative to achieve the
goals envisaged in part IV of the Constitution in the form of article 44.
Although the Constitution has granted to the people with right to freedom
of religion, it should not altogether be forgotten that these rights are not
be studied within watertight compartments but are liable to certain
limitations enshrined thereunder itself; therefore what is required is the
harmonious construction. India needs to adopt the doctrine of co-
existence where two things are necessary that all the religious sects are
required to observe high toleration towards other religions and the other
is strict adherence of equality and non-discrimination by all the people
concerned which are also the keystones of the constitutional edifice.
The other concept which is to be taken care of is that religion must
not be mixed with other fundamental rights available to the citizens that
are equality, liberty and justice and if religious supremacy overrides such
human rights then the latter must prevail. It is imperative on the
legislature and executive to give life to this provision to achieve national
harmony. The discrepancies in its absence have to be fixed as soon as
possible and it depends upon the government's urge; if it does then the
people have to abide by it but it must not be done over a night but must be
done steady leaving no stone unturned as though justice delayed is justice
denied whereas justice hurried is justice buried. Therefore, there is an
urgent need to implement UCC as to prevent the atrocities against the
women in various communities because of their personal laws and the
candid observations of the Supreme Court in various cases must be taken
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seriously by the legislature as it is the high time when we need to look
beyond the interested regimes of individual communities. As Kuldip 83Singh, J., stated:
The traditional Hindu law - personal law of the Hindus -
governing inheritance, succession and marriage was given a
go by as back 1955-56 by codifying the same. There is no
justification whatsoever in delaying indefinitely the
introduction of uniform personal law in the country. Those
who preferred to remain in India after the partition, were
aware of the fact that Indian leaders did not believe in the two
nation theory or three nation theory and also that in Indian
republic there would be only one nation - Indian nation and
no community could make a claim to be a separate entity on
the basis of the religion. Not only could a lawman, even a
layman, appreciate this judgment.
In this way, it can be well summarized that India must implement UCC
with an urgent call and in recognizing such legislation, it must take care
of various other variables related to other religions so that on one hand the
very purpose of it is not defeated and on the other, right of freedom of
religion subject to constitutional limits is not affected.
83 AIR 1995 SC 1531.
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SUPREME COURT OF INDIA AND ITS
CONSTITUTIONAL INTERPRETATIONS:
THE JOURNEY SO FAR (1950-2017)*Shivansh Shukla
**Akrity Aishwarya
Abstract
This paper charts the interpretation of the Constitution of India by the Supreme Court of India. The particular focus of this article is on part III and its relation to part IV of the Constitution. In doing so, it critically analyses various landmark judgments where the Supreme Court has interpreted the fundamental rights guaranteed by part III of the Constitution and its relation to the directive principles of state policy provided under part IV of the Constitution. The paper will give a brief overview of the Supreme Court's approach in interpretation of the constitutional provisions.
I Introduction
THE CONSTITUTION of India is the primary legal document of
country. It is from this document that the various laws of the country
derive their legal sanction. The Constitution indifferently described as a
'fundamental law', 'the socio-political manifesto of a nation', 'the
instrument of governance', each signifying an important dimension of the
document. It is a living thing with a body and a soul; the soul can possibly
found in the Preamble and the chapters on rights, duties and directive 1
principle of state policy. The Constitution of India is based on the
principles that guided India's struggle against a colonial regime that
consistently violated the civil, political, social, economic and cultural 2right of the people of India. The freedom struggle itself has informed by
the many movements for social reform against oppressive social practice 3
like sati, child marriage, untouchability etc.
* rd 3 year student, B.A.LL.B., Lloyd Law College, Greater Noida, U.P.** rd 3 year student, B.A.LL.B., Lloyd Law College, Greater Noida, U.P.1 N.R. Madhava Menon, “The Beauty of the Constitution of India lies in its flexibility”, available at: http://marketime.blogspot.in/2006/05/the-beauty-of-the-indian-constitution-lies-in.html (last visited on October 29, 2017).2 Mamta Chandrashekhar, Human Rights, Women and Violation 27 (Educreation Publishing, New Delhi, 2016). 3 Anjana Maitra, “Human Rights and the Constitution of India” (May 13, 2017).
The Constitution of India in 1950 established the Supreme Court of
India, replacing the Federal Court. The makers of the Constitution
conceived of this court as a pillar of democracy and guardian of rights of th
the people. On 28 January, 1950, two days after India became a
sovereign democratic republic, the Supreme Court of India came into
existence. It is the highest court in judicial hierarchy of the country and
has original, appellate and advisory jurisdictions to safeguard the
fundamental rights of the citizens, and to act as a final adjudicatory forum
between the states and the centre. The structure of the judiciary is
provided in chapter IV of the Constitution of India. Article 124 deals with
establishment and constitution of the Supreme Court. Articles 129 to 145,
confers extensive powers on the Supreme Court which stands out as a
forum for redressal of grievances and as the guardian of rights and
liberties of people and as the final arbiter in most of disputes not only
between individuals, but also between states or between the Union and
state or between individual and state. As an appellate court, it can hear
appeals from the high courts on civil, criminal and constitutional matters.
It possesses a special appellate power to permit appeal from any tribunal,
court or high court. The court can review its own judgments. In its
advisory capacity, it answers references by the President of India on any
questions of law or fact of public importance, which may have arisen or 4
be likely to arise. All authorities, civil and judicial, within the territory of
India are mandated by article 144, of the Constitution of India to act in aid 5of the Supreme Court. The court has the authority to pass any decree and
order as is necessary for doing “complete justice”.
The Constitution of India has an impressive array of basic and
inalienable rights. These rights have received dynamic interpretation by
the Supreme Court over years and can truly said to be the basis for the
development of the rule of law in India.
4 The Supreme Court (Decrees and Orders) Enforcement Order, 1950, made by the President and published under Notification No. S.R.O. 49, Gaz. of India, 1950, Part II, u/s. 3, 13.5 th V.N. Shukla, Constitution of India 566 (Eastern Book Company, Lucknow, 5 edn., 2015).
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 163
It has been stated that “corruption, nepotism and favoritism have led
to the gross abuse of power by the executive, which has increasingly
come to light partly as a result of investigative journalism and partly as a 6
result of litigation in courts.”
The legal position of India has developed through several judgments
of Supreme Court given in context of all of above rights, but more
specifically in context of fundamental rights, which includes right to
equality, right to freedom of speech and expression, right to propagate
and practice religion etc. The interesting aspect of these judicial
pronouncements is that the scope of the right has gradually widened,
taking into account the cultural shifts in the polity and in the society.
The very fact is that the people are the real entity for which this
Constitution was framed. It has been proved by the Preamble itself – “We
the People of India”. Therefore, everything has to be tested on the basis of
what serves the people of the country. In India, the people are supreme, 7
through the Constitution of India, and not the elected representatives.
The accountability of the government for every action taken has to be to
the legislature, which represents the people of the country.
The Supreme Court has carved for itself a place of distinction not
just in the annals of our judicial history but in the Indian public life as
well. While making singular contributions to our constitutional
jurisprudence, it has enriched our nation's social, educational and
political domains through its judges and lawyers who have given their
best in molding the foundations of this great secular and democratic
nation.
II Directive principles of state policy vis-à-vis fundamental rights
Part III and IV of the Constitution have been together described as 8“conscience of the Constitution”. The fundamental question that strike
6 th M.P. Jain, Constitution of Indiaal Law 988 (Wadhwa and Co., New Delhi, 5 edn., 2005).7 Usha Bharti v. State of U.P., (2014)7 SCC 663.8 Austin Granville, The Constitution of India, Cornerstone of a Nation 50 (Oxford University Press, Oxford, 2000).
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here is which of these would prevail in the case of conflict between them.
This question has all along been the central point of controversy between
parliament and Supreme Court. Finally, it results not only in the
enactment of some of the significant constitutional amendments but also
in the pronouncement of some of the locus classic judicial decisions. In
context to this we have discussed some of the important cases.
Directive principles of state policy
The concept of directive principles embedded in the Constitution 9
was inspired by and based on article 45, of the Irish Constitution. Part IV
(37-51) contains positive obligations of the state. The state must secure a
social order in which social, economic and political justice must inform 10all the institutions of national life. Directive principle of state policy
possess basically two characteristics, firstly they are not enforceable in 11
any court. If a directive is not obeyed by the state its obedience or 12
implementation cannot be secured through judicial proceedings. But
consequently in the decisions of the Supreme Court have enforced some
of the directive principles in support of the fundamental rights. Secondly,
directive principles are fundamental in governance of the country and
shall be the duty of the state to apply these principles in making laws.
Fundamental rights
The part III of the Constitution of India has the fundamental rights, 13which is also described as the Magna Carta of India. In the late thirteen
century, King John enunciated that no person could be detained without a 14trial which gave rise to the rights in terms of entitlement. The origin or
the concept of fundamental rights, also known as natural rights or human
9 Maureen Callahan Vandermay, “The Role of the Judiciary in India's Constitutional Democracy”, 20 Hastings Int'l & Comp. L. Rev.103 (1996-1997).10 Supra note 5.11 Ibid.12 Ibid. 13 V.G. Ramchandran, Fundamental Rights and Constitutional Remedies 1 (Eastern Book Company, Lucknow, 1964).14 H.M. Seervai, Constitutional Law of India (Universal Law Publiction Co. Pvt. Ltd., 2015).
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 165
rights or basic rights or inalienable rights, is based on the theory of natural
law. These natural rights thus led to the formulation of human rights. The
influence of natural rights can be found in the English Bill of Rights,
1689, the French Declaration of Rights of Man, 1789, the United States'
Bill of Rights, 1791, the Universal Declaration of Human Rights, 1948,
as well as in the part III of the Constitution of India which deals with
fundamental rights. The fundamental rights impose a negative obligation
on the State not to encroach on individual liberty in its various 15
dimensions. However, it serves the purpose of reminding the
government in power to respect those rights and limiting the range of 16
activity of the state in appropriate directions.
Extension of directive principles to fundamental rights
Since the directive principles are not enforceable by the court it has
been advocated that they are not law and therefore their non-observance
by the state does not entail legal consequence. The relationship between
directive principles of state policy and the fundamental rights has been
the subject matter of controversy since commencement of the
constitution. In this context there are some of the judicial decisions and
views of constitutional makers.
17 In State of Madras v. Srimathi Champakam Dorairajan the
Supreme Court observed that:
The directive principles of state policy which by article 37,
are expressly made unenforceable by courts cannot override
the provisions of part III which, notwithstanding other
provisions, are expressly made enforceable by appropriate
writs, orders or directions under article 32. Directive
principles of state policy have to conform to and run as
subsidiary to the chapter of fundamental rights.
15 Supra note 5.16 M.P. Sharma, The Government of the Indian Republic 41 (Kitab Mahal, Allahabad, 1965).17 AIR 1951 SC 228.
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This clearly states that in the conflict between fundamental rights
and directive proniciples of state policy, the fundamental rights will
prevail. This was contested on the ground, which fundamental rights and
directive principles are the part of the same Constitution and they
supplement and complement to each other. In the case of Chandra 18Bhavan Boarding and Lodging v. State of Mysore, the court opined that
it did not see any “conflict on the whole between the provisions contained
in part III and part IV”.
19 In Minerva Mills Ltd. v. Union of India, the court held that
“harmony between fundamental rights and directive principles is an
essential feature of the basic structure of the constitution.” In the case of 20State of Tamil Nadu v. L. Abu Kavur Bai, the court held that although the
directive principle are not enforceable yet the court should make a real
attempt at harmonizing and reconciling the directive principles and the
fundamental right and any collision between the two should be avoided
as far as possible. In Grih Kalyan Kendra Workers Union v. Union of 21India, the Supreme Court has enforced the provisions of article 39(d) by
giving the directive principles the status of fundamental rights.
III Judicial interpretation of the Constitution of India
A non-partisan and an independent judiciary that functions within
the constitutional boundaries and defined under the principle of
separation of powers is accepted as the interpreter of the Constitution and
to uphold the rule of law and the norms laid down in the Constitution. The
Supreme Court of India has opined that it is the sentinel qui vive and that it
operates as a bulwark against violations of fundamental and 22
constitutional rights.
18 AIR 1970 SC 2042.19 AIR 1980 SC 1789.20 AIR 1984 SC 626.21 AIR 1991 SC 1173.22 Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268.
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 167
“The judiciary, at one time, was considered and projected to be the
weakest branch of the state because it possessed neither power of the 23purse nor the power of the sword. This myth has been demolished.”
The Supreme Court has pronounced over thousand judgments, all of
them are significant, as it comes from the apex court of the country whose
rulings have a force of law, some are more significant in view of the
subject it dealt with and also the law it laid down. There are instances 24 where the courts find gaps in laws and may legislate in the 'interstices'.
This should not be interpreted as an Act of legislation, but simply an act of
judicial interpretation.
In many instances, the court has travelled beyond the rule of strict
statutory interpretation, and have resorted to 'purposive' interpretation of
the laws to fill-in the gaps. The Supreme Court has tried to understand the
objective of the statute in order to correct its deficiencies. However, such
purposive interpretation should only be used to treat legislative or
constitutional deficiencies and should not result in defeating the very
purpose of such legislation.
Some of the landmark judgments that have affected the
humanitarian nature of this nation, to show the journey of Supreme Court
traveled in last sixty seven years. (1950-2017) are as follows:
The first case where the Supreme Court meaningfully examined and
interpreted key fundamental rights enlisted in the Constitution is 25A.K. Gopalan v. State of Madras. In this case the contention was
whether, under the writ of habeas corpus and the provisions of the
preventive detention Act, there was a violation of the fundamental
rights entitled in article, 13, 19, 21 and 22. The Supreme Court
reiterated that the term 'due process' prevented the courts from
engaging in substantive due process analysis in determining the
23 Zia Mody, 10 Judgements That Changed India (Penguin India, New Delhi, 2013).24 Thomas Grey, “Holmes Language of Judging- Some Philistine Remarks”, 10 St. John's L. Rev. 11 (1996).25 AIR 1950 SC 27.
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reasonableness of the level of the process provided by the
legislature.
26 In Budhan Choudhary v. State of Bihar, the apex court held that
article 14 did not prohibit a reasonable classification. The only
requirement is that the differentia on the basis of which the
classification was made must be intelligible and should have a
reasonable nexus with the object sought to be achieved by the
statute. The court also held that that even judiciary comes within the
definition of 'state', as under article 12, of the Constitution of India,
for the purposes of enforcing fundamental rights and in case of any
infringement on them by the judiciary, the superior courts are
entitled to scrutinize such actions.
27 In Maneka Gandhi v. Union of India, the conjoined reading of
fundamental rights was upheld and it was held that each
fundamental right did not form a separate code and thus a mere
sufficing of an express right did not relax the test on other rights.
Hence mere satisfaction of procedure was not sufficient; rather
the principle of reasonableness, which legally as well as
philosophically, was an essential element of equality or non-
arbitrariness, pervaded article 14, and the procedure contemplated
by article 21, must answer the test of reasonableness.
28 In Sunil Batra v. Delhi Administration, assuming a legislative role,
providing for the interest of the prisoners, the Supreme Court laid
down guidelines for the protection of the rights of the prisoners. The
stress was laid down on the need of the courts to be dynamic and
diversified in meeting out remedies to prisoners greater need was felt
for expeditious prison reforms and protecting of the rights of the
prisoners. Thus the court stood tall in defending the rights of the
prisoners inside prisons.
26 AIR 1955 SC 191.27 AIR 1978 SC 597.28 AIR 1980 SC 1579.
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 169
29 In Bachan Singh v. State of Punjab, the constitutionality of the
provisions imposing death penalty was upheld. The apex court laid
down the doctrine of ‘rarest of rare case’ for the purposes of
awarding of death penalty. Thus the case laid down a strong
foundation for sorting out an extraordinary case with prevailing
special circumstances, which has now become the yardstick for
awarding death penalty by Indian judiciary.
30 In Bandhua Mukti Morcha v. Union of India, the apex court
declared that article 21, of the Constitution assures right to live with
human dignity free from exploitation held that state was under a
constitutional obligation to ensure that there is no violation of
fundamental rights of any person particularly weaker sections of
society. The court gave a set of 21 guidelines to central and state
governments to check such gross abuses of citizen's rights in future.
31 In Pt. Parmanand Katara v. Union of India, the court declared that
'right to get medical care' within the purview of article 21, of the
Constitution as a fundamental right, every person in India gets the
right to approach any hospital and get medical aid even when the
legal formalities have not been complied with. As a result, the
number of deaths occurring due to refusal of the doctors to treat the
patients if it is a case of an accident or any criminal case, will go
down and the doctor will be justified in being regarded as the savior
of human life.
32 In L. Chandra Kumar v. Union of India, the court of seven judge
bench was constituted to decide upon a controversial issue relating
to the power of judicial review of the high courts and Supreme 33
Court. The apex court prescribed that:
29 (1982) 3 SCC 24.30 AIR 1984 SC 802.31 AIR 1989 SC 2039.32 AIR 1997 SC 1125.33 Ibid.
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no appeal from the decision of a tribunal will lie directly
before the Supreme Court under article 136, of the
Constitution but instead, the aggrieved party would be
entitled to move the high court under articles 226 or 227 of
the Constitution and only from the decision of the division
bench of the high court the aggrieved party could move
Supreme Court under article 136, of the constitution.
34 In Vishaka v. State of Rajasthan, the court laid down the framework
and guidelines for the protection of the working woman from sexual
harassment at the work place. Another aspect to be noted here is that
these guidelines are equally applicable to the private employer,
thereby ensuring that the protection extends everywhere and the life,
dignity and profession of a working woman is adequately protected.
35 In D.K. Basu v. State of West Bengal, the Supreme Court has given
sufficient rights and remedies to have a dignified existence at the
time of being imprisoned, and detailed eleven measures to be
observed by the police to secure arrest of accused. The abuse of
powers by the police at the time of securing imprisonment has been
significantly curtailed by this decision and the court has in fact also
directed that any violation of these guidelines shall be considered as
contempt of court and shall be dealt with accordingly.
36 In Daniel Lati v. Union of India, the constitutional validity of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 was
challenged before the Supreme Court. The Act was passed to
appease a particular section of the society and with the intention of
making the decision in case of Mohd. Ahmed Khan v. Shah Bano 37
Begum ineffective. It is unfortunate to note that the court did not
strike down the Act which purports to exclude Muslim women in
particular from the beneficial treatment of section 125 of Criminal
34 AIR 1997 SC 3011.35 AIR 1997 SC 3017.36 AIR 2001 SC 3958.37 AIR 1985 SC 945.
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 171
Procedure Code, 1973. The legislature to appease the Muslim gentry
may have passed the Act on political consideration but that same has
rendered an indirect classification of people of the basis of religion,
which is against the fundamental aspect of secularism which we
have adopted in our constitution.
38 In People's Union of Civil Liberties v. Union of India Supreme
Court held that a provision of negative voting would be added in the
interest of promoting democracy as it would send clear signal to
political parties and their candidates as what the electorate thinks
about them. “The directions issued herein, especially to incorporate
a NOTA button in EVM's which in turns provides a chance to
unscrupulous elements to impersonate the dissatisfied voter and cast
vote, be it a negative one”.
39 In Suresh Kumar Koushal v. Naz Foundation SLPs and IAs were
directed against the decision of Delhi High Court in Naz Foundation 40
v. Govt. (NCT of Delhi) in respect constitutionality of section 377
IPC “in so far as it criminalised consensual sexual acts of adults in
private being violative of articles 21, 14 and 15, while holding that
section 377, of IPC would continue to govern non-consensual penile
non-vaginal sex including minor.” Allowing the appeals and
reversing the learned judgment, the Supreme Court held that section
377 would apply irrespective of age and consent, and it does not
criminalize a particular people or identity or orientation.
Further Supreme Court mentioned that “while reading section 377
IPC, the division bench of the high court over-looked that a miniscule
fraction of the country's population constitutes lesbians, gays, bisexuals
or transgender (LGBTs) and in last 150 years less than 200 persons have
been prosecuted for committing offence under section 377, IPC and that
38 (2013) 10 SCC1.39 (2014) 1 SCC 1.40 (2009) 160 DLT 277.
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cannot be made sound basis for declaring section 377 IPC ultra vires the
provision of article 14, 15 and 21of the constitution”.
41 In National Legal Services Authority v. Union of India, members of
the transgender community filed a writ petition seeking legal
declaration of their right to choose their gender identity other than
the one assigned to them at the time of birth and their prayer was that
non-recognition of their gender identity violates article 14, 15 and
21, accepting the prayer Supreme Court constituted an expert
committee to make an in-depth study of the problem faced by the
transgender community and suggest measures that can be taken by
government to ameliorate their problem and to prepare a report and
to make it a legal declaration and implement within six months.
In Supreme Court Advocate-on-Record Association v. Union of 42
India, the preliminary issue was constitutional validity of ninety-
ninth amendment and replacement of collegium system by National
Judicial Appointments Commission (NJAC). Rejecting the
objection, the presiding judge held that:
there was no reason for him to take to exceptional recourse of
recusal when other similarly situated Judges did not do so
and that he had a constitutional duty to perform the judicial
function and was bound under the oath to act without fear or
favour.
43 Shayara Bano v. Union of India and Ors. (also known as triple
talaq judgment): The historic judgment of five judges bench of the
Supreme Court declaring the practice of unilateral divorce (also
known as triple talaq or talaq-e-biddat) unconstitutional. It is
unequivocally established that the practice which runs counter to the
gender jurisprudence evolved by the Supreme Court, the principles
41 (2014) 5 SCC 438.42 2015 SCC Online SC 976.43 (2017) 9 SCC 1.
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 173
44of equality as ordained in the Constitution, international human
rights law and the Quran is not fundamental to the religion of Islam 45in India. The Supreme Court judges cited the laws of different
islamic countries where they have abolished the practice triple talaq.
It can be clearly stated as a judgment in favor of justice based on
women's rights as human rights that have been denied to Muslim
women for centuries despite Quranic provisions relating to gender 46and spousal equality in wedlock and beyond. However, the Quran
does not sanction triple talaq in one go. The Supreme Court's
decision has established the supremacy of constitutional guarantees
in upholding gender equality in relationships within the religious
structures of Islam.
47 Justice K S Puttaswamy (Retd.) v. Union of India and Ors. (also
known privacy judgment): Nine judges of this court assembled to
determine whether privacy is a constitutionally protected value. The
issue reached out to the foundation of a constitutional culture based
on the protection of human rights and enables this court to revisit the
basic principles on which our Constitution has been founded and
their consequences for a way of life it seeks to protect. “This case
presented challenges for constitutional interpretation”. If privacy is
to be construed as a protected constitutional value, it would redefine
in significant ways our concepts of liberty and the entitlements that
flow out of its protection. The Attorney General for India urged that
“the existence of a fundamental right of privacy is in doubt in view of 48
two decisions: first M P Sharma v. Satish Chandra was rendered by
a bench of eight judges and second, Kharak Singh v. State of Uttar 49
Pradesh was rendered by a bench of six judges. Each of these
44 The Constitution of India, art. 14,15 and 21.45 Nafees Ahmad, “Triple Talaq Judgment Upholds the Quran within the Constitution of India”, The Wire, Aug. 30, 2017.46 Dhananjay Mahapatra, “Supreme Court verdict on triple talaq: Key points”, The Times of India, Aug. 22, 2017.47 2017 SCC Online SC 996.48 AIR 1954 SC 300.49 AIR 1963 SC 1295.
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decisions, contained observations that the Constitution of India does
not specifically protect the right to privacy.” Further, the Supreme
Court overruled the previous judgments and held that “The right to
privacy is protected as an intrinsic part of the right to life and
personal liberty under article 21, and as a part of the freedoms
guaranteed by part III of the constitution.”
Conclusion
The Constitution of India, inter alia, envisages a just and an
egalitarian social order promised on justice – social, economic and
political; liberty of thought, expression belief, faith and worship; and 50equality of status and of opportunity. The Supreme Court of India itself
gets its power from the Constitution. Over the years, we have witnessed
that the Supreme Court has culled out several un-enumerated rights as
being implied with the enumerated rights of the part III of the 51
Constitution. The concept of personal liberty is to be used in its widest
amplitude under article 21 of the Constitution, which ultimately brought 52a deep impact on the contemporary constitutional jurisprudence.
In many of the cases related to constitutional matters, the Supreme
Court applied innovational technique of judicial creativity to provide
justice for all the classes. However, in the above discussed cases like Naz 53
Foundation v. Govt.(NCT of Delhi) the Supreme Court of India ignoring
the miniscule fraction of the country's population which constitutes
lesbians, gays, bisexuals or transgender (LGBTs) and declared that
section 377, of IPC would continue to govern non-consensual penile non-
vaginal sex including minor, whereas in the case of National Legal 54
Services Authority v. Union of India Supreme Court of India constituted
50 K.I. Vibhute, Dr. Ambedkar and Empowerment: Constitutional Vicissitudes 119 (University of Poona Press, 1993).51G Manohar Rao, G. B. Redddy, et. al. (eds.) Judiciary in India Constitutional perspective 245 (Asia Law House, Hyderabad, 2009).52Maneka Gandhi v. Union of India, AIR 1978 SC 597.53Supra note 39.54Supra note 40.
Supreme Court of India and its Constitutional Interpretations: The Journey So Far (1950-2017) | 175
an expert committee to make an in-depth study of the problem faced by 55the transgender community. Moreover, after Privacy judgment the right
to privacy becomes a fundamental right which also includes the rights of
homosexuals as well. This dual nature of Supreme Court proves the
inefficiency of the judiciary.
Whereas if we analyze the case of Mohd. Ahmed Khan v. Shah Bano 56Begum, Supreme Court declared that Muslim women have the right to
claim maintenance under section 125 of Criminal Procedure Code
irrespective of their religion. The problem of maintenance to the divorced
wife only arises because of the allowance of “triple talaq” in the islamic
laws. To solve these discrepancies the Supreme Court in the recent 57judgment of Shayara Bano v. Union of India and Ors. held the practice
of “triple talaq” unconstitutional as it violates article 14, 15 and 21 of
Constitution of India. The above case is an example where Supreme
Court has excellently interpreted the Constitution which benefited the
public interest at large.
Further, if we discuss the relationship between fundamental rights
and directive principle of state policy, the judiciary took time, but it did
eventually broaden its perspective in order to achieve the constitutional
goals enshrined as 'directive principles of state policy'. Directive
principles were eventually recognized, not as mere strings of words in the
Constitution, but as a catalyst to achieve social, political and economic
goals. It gave a dynamic dimension to the jurisprudence as discussed in
the paper. This new trend and the decisions show that activist judges are
not letting orthodox ideologies dictate their decision making. Instead of
becoming a stumbling block the judiciary has now taken itself the
responsibility of implementation and interpretation of laws for the
welfare of society.
55Supra note 45.56 Supra note 36.57 Supra note 46.
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