Constitutional Law: Doctrine of Colourable Legislation

Reading time : 10 minutes

Introduction

Have you heard of the Fraud Constitution? No, many people may not have heard it because everyone would have heard it as the doctrine of Colourable Legislation used by the courts of India. In simple words, the meaning of the Doctrine of Colourable Legislation that ‘if you could not do anything directly, also you cannot do indirectly.’ Under the colour or guise of the power given for the other purposes, the legislature cannot demand to achieve that another purpose which it is otherwise not competent to the legislature in pursuance of the Indian Constitution. Changing its colour, form, or language does not make the wrong thing right, because wrong is always wrong. Therefore, under the Indian Constitution, the powers of the Center and the State are divided into three lists under Schedule Seven of the constitution: first the Union list, second the state list and the last Concurrent list. Thus, both will follow their power to make laws according to their list. So that neither of the two makes their law on the subject of each other’s list and there is no guise of differences between the two. If either of the two shall make a law using its power beyond competence for its purpose, it shall be considered by the court that the law is Colourable Legislation. Also, called a Fraud Constitution.

Understanding the Doctrine of Colourable Legislation

The doctrine of Colourable Legislation is based upon the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” that says When something is prohibited directly, it is prohibited indirectly. The doctrine is used in the cases to determine questions of competency to enact a law when a legislature overtakes its conferred power and legislates upon something indirectly, which it cannot do in a direct manner.

Colourable legislation will arise merely when the legislature has no power to form the law on the subject matter because it is not included in the list assigned to it under the respective entries of seventh scheduled, Or due to certain limitations, whether the third part of the constitution or some other power under the constitution. Under Article 246 of the Indian Constitution, it makes provision the division of legislative powers between the Parliament and the State legislatures. It enumerates the legislative subjects into three lists, first the Union List, the State List, and the Concurrent List under the Seventh Schedule of Indian Constitution. It is required to operate within their respective legislative competence for the Centre and the State.

Sometimes the legislature makes such law, which appears to be within its competence but its effect and essence lie beyond its boundary. Then the law would be declared as void. In simple words, the different colour is given to the law (by the legislature to bring it within its limits) but, it cannot prevent it from being declared an illegal law. Such law is called as colourable legislation.

Case Laws

Now, some eminent and important cases regarding the colourable legislation. The most renowned case was The State of Bihar Vs Kameshwar Singh[1] in 1952. The issue was that the constitutional validity of the three state Acts had to be examined by a court called the Bihar Land Reforms Act, 1950. Arrears of the rent due to the landlord prior to the date of acquisition were to vest in the state, and half of these arrears were to given to the landlord as compensation. According to entry 42, on the compensation of property acquired for the purpose of the Union / State or on list third for another public purpose, is determined, ‘was amended as a whole and returned one-half meaning. It invalidated the Bihar Land Reforms Act,1950. It held that the provision of the Act relating to the payment of compensation for the acquisition of surplus land was only a pretension and not a reality.

Another case was the State of M.P. V. Mahalaxmi Fabric Mills Ltd[2]. In that case, the issue was increasing the royalty rates from 400 per cent to 2000 per cent by the Parliament in the cess and other taxes on minerals validating Ordinance, 1992 was a colourable device. It was issued not for the development of minerals but for compensating the State government. The facts that, the central government had the power under the Mines and Minerals (Regulation and Development) Act, 1957 to increase the rates of royalty amount. In 1982 several coals producing states imposed, and received coal development cess, which was held to be invalid and beyond the legislative competence of the state legislature after that the ordinance has been passed. The Supreme Court upheld the validity of the notification and held that it could not be said to be a convenience device. Minerals belonged to the state and the losses suffered by them should be repaid. The Supreme Court upheld the validity of the notification and held that it could not be said to be a convenience device. Minerals belonged to the state and the losses suffered by them should be repaid.

In the case of the K.C. Gajapati Narayan Deo V. The state of Orissa[3], The Supreme Court while, retaining the validity of the Orissa Agricultural Income Tax Amendment Act, 1950. The court held that the Act was not colourable legislation as it falls within the legislative capacity of the State Legislature.

In the case of the K.T. Moopil Nair V. The state of Kerala[4], The Supreme Court declared the Travancore Cochin Land Tax Act,1955 as invalid. The court said that the Act violated Articles 14 and 19(1)f) and its provisions were confiscatory in nature.

In the case of M.R. Balaji Vs. The state of Mysore[5], the Supreme Court quashed the state order declaring 68 per cent seats in educational institutions to backward class students void. It is believed that the executive order violated Article 15 (4) and was, therefore, a fraud on the Constitution.

Limitations of Colourable legislation

  • No application where there are no constitutional limitations. Meaning, whatever the subject matter is given under the Scheduled Seven within the three lists of the constitution, they can only do their work by staying up to them and not going outside.
  • Not applicable to subordinate legislation. It is only based on the question of the competency of the particular legislature to enact a particular law by the legislature.
  • Not concerned if the law is relevant or irrelevant. In this doctrine of colourable legislation, the focus is only on whether the legislature can to legislate or not.
  • The presumption is always in favor of the constitutionality of the law, and the burden of proof on that person who wants to show that there has been a clear violation of the constitutional principles. Meaning, if any person says that there is colourable legislation in any case, then that person will have the burden of proof to prove the colourable law in that matter. And the court also makes its own limitation in colourable legislation cases which use to resolve the cases.

Critical analysis

There are two types of government, the Unitary Government and the Federal Government. In Unitary government, the maximum or full powers are derived by the Centre. e.g., France, Japan, China etc. In the Federal government, the division of powers is derived between both the Centre and the state. e.g., the United States, India etc. In India, only at the time of emergency, the Centre would become more powerful, and the State would become less powerful. Only at that time, India uses Unitary Government and rest India use federal government.

So, as per the Indian Constitution, the powers of the Centre and State divided into three categories. First legislative relations Article (245 to 255), second Administration relations Article (256 to 263) and Financial relations Article (264 to 293).

The main relation is the legislative relations between the Centre and the State. Article (245 to 255) mentioned the legislative powers. Also, mentioned the Territorial and Subject-Matter Jurisdiction. Colourable legislation is used by the courts to settle a dispute over the jurisdiction of the subject matter. Under the Seventh Schedule, in Article 246 of the Constitution of India, Parliament can make a law on the Union List(I) and the Concurrent List (III). The State legislature can make the law only on the State list (II). If a new subject comes into nature, then the only Parliament has the power to legislate on it. It is questioned under Article 248 (2) of the Indian Constitution. But this can change under exceptional circumstances. Under National Emergency, Raja Sabha passes a resolution, on the state’s request and implementing the international agreement. Hence, all these subjects have been distributed to the Centre and the State in their respective lists.

However, sometimes the state makes a law on the subject of the Union List which is not under its jurisdiction, the State makes such a law for itself but it indirectly encroaches the subject of the Union List, which goes further. Disputes occur between the state and the Centre. So, the simple thing is that the state is required to enact laws within its prescribed jurisdiction and not beyond it and colourable legislation is used by the court to prevent this arbitrariness and to know the validity of the law. Also, we have already discussed the related cases above.

Conclusion

In the end, we can conclude that the state cannot change the colour or appearance of any law to enforce it under the given subject-matter in 7th Scheduled of Indian Constitution, which is not under their jurisdiction. Because according to the doctrine of colourable legislation also, something you cannot do directly, you cannot do it indirectly.


[1] State of Bihar V. Kameshwar Singh, AIR 1952 SC 252

[2] State of Madhya Pradesh V. Mahalaxmi fabric mills ltd, AIR 1995 SC 2213

[3] K.C. Gajapati Narayan Deo V. The state of Orissa AIR 1953 Ori 185

[4] K.T. Moopil Nair V. The state of Kerala 1961 AIR 552, 1961 SCR (3) 77

[5] M.R. Balaji Vs. The state of Mysore 1963 AIR 649

Author: Aditya Kohli, Dharmashastra national law university, Jabalpur, M.P.

Editor: Kanishka VaishEditor, LexLife India.

LAW RELATING TO RAPE AND SEXUAL CRIMES IN INDIA

Reading time : 8 minutes

Introduction

Sexual crimes in India have always been a matter of great concern. As per the data released by NCRB 32,033 rape cases where reported in 2019, an average of 87 rape cases in a day was seen in the year. Uttar Pradesh and Rajasthan were among the states with worst record of rape and sexual crimes. This data should comes as a shock for the nation as even after such strict laws we are still not able to reduce the number of sexual crimes. The recent case of gang rape of a 50 year old woman in the village of Badaun, Madhya Pradesh has shaken the whole country.

This leads to several questions as to what is the reason behind such alarming rate of sexual offences. Are rape laws not strict enough?  Are there any loopholes in the laws? Is punishment for rape under IPC not adequate?

Understanding the Concept of Rape under IPC

The offence of rape has been defined under Section 375 of Indian Penal Code. A man is said to have committed rape of a woman when he indulges into sexual intercourse with a woman against her will or without her consent. The Section provides with seven circumstances under which sexual intercourse by a man will be considered as rape:-

a. Against her will.

b. Without her consent.

c. With her consent, when her consent is obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

d. When woman gives consent believing that the man is her husband.

e. With her consent when given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance.

f. With or without her consent, when she is under eighteen years of age.

g. When she is unable to communicate consent.

Consent obtained by fear, misrepresentation, fraud, coercion, under mistake, or reason of unsoundness of mind is no consent. There is a fine distinction between “an act done against the will” and “an act done without the consent”. The Supreme Court has explained the difference between the two in the case of State of Uttar Pradesh v. Chottey Lal, (2011). The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other, the expression “without her consent” would comprehend an act of reason accompanied by deliberation.

The Section has also included two exceptions:

1. A medical procedure or intervention shall not comprise rape.

2. Sexual intercourse by a man with his wife, wife not being below 18 years is not rape.

The age limit in exception 2 was changed from 15 to 18 years in the case of Independent Thought v. UOI AIR 2017. The Supreme Court held that this exception was making an unnecessary distinction between a married girl child and an unmarried girl child which violated Articles 14, 15, and 21 of Constitution of India. It was also inconsistent with provisions of POCSO Act.

Punishment (Section 376)

1. Rape- Rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment and also liable to fine.

2. Rape of a woman below 12 years of age- Minimum 20 years’ imprisonment or jail for rest of life or death.

3. Rape of a woman less than 16 years – Minimum punishment of 20 years imprisonment which may be extended to life.

4. Gang rape- Rigorous imprisonment for 20 years which may be extended to life and also liable to fine.

5. Gang rape on woman under 16 years- Imprisonment for life and liable to fine.

6. Gang rape on woman under 12 years- Imprisonment for life and liable to fine or death.

7. Repeat Offenders- A person who has already been convicted under the sections 376, 376A, or 376D and is subsequently convicted of an offence under these sections shall be punished with imprisonment for life or death.

Evolution of Criminal Law

The laws relating to sexual offences have gone through many reforms, courts in their judgement have decided many cases which were widely criticized and in order to nullify the effect of such decisions provisions relating to law of rape as stated earlier were extensively amended in 1983 vide Criminal Law (Amendment) Act 43 of 1983. One such case was Tukaram v. State of Maharashtra AIR 1979, popularly known as Mathura rape case. Mathura, an 18 year old Harijan girl was raped and molested by two police constables Ganpat and Tukaram at the police station after keeping her in the late hours of the night. The Supreme Court in this case reversed the finding of Bombay High Court and held that Mathura was subjected to no fear and since there was no resistance on her part it could be said that there was consent. This decision was not appreciated by the public and was said to be a failure of courts to safeguard rights of victims of rape.

Important Amendments in Criminal Law

The inadequacy of the laws of rape manifested in a number of judgements of the Supreme Court such as Tukaram v. State of Maharashtra AIR 1979, Sidheshwar Ganguly v. State of West Bengal AIR 1958, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983. It was an absolute failure to safeguard the rights of the innocent victims against such heinous crimes. The Parliament in order to strengthen the law brought several amendments to the penal laws and the procedural laws. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of 2013 and other provisions are listed below:

(i) Consent of a woman of unsound mind or under intoxication: the clauses fifthly and sixthly were added by the Act of 1983 to Section 375. The consent of a woman who is of unsound mind or under influence of intoxicants would not be held as a valid consent because during that state she is unable to understand the nature and consequences of the act.

(ii) Burden of proof of innocence on accused: section 114A was inserted in The Evidence Act, 1872 which made the presumption of absence of consent of the woman if the case fell under section 376(2) clauses (a), (b), (c), (d), (e) and (g), IPC shifting the burden of proof of innocence on the accused.

(iii) Prohibition of disclosure of identity of the victim: section 228A, IPC clause prohibited the disclosure of identity of victims in rape cases under sections 376, 376A, 376B, 376C, 376D 0r 376E IPC.

(iv) Persistent vegetative state: clause 376A was added punishing the offenders an imprisonment for a term not less than 20 years or which may extend to life when the injury caused to the victim results in death of the woman or causes to woman to be in a Permanent Vegetative State (PVS).

(v) Trial in camera: section 327, CrPC, 1973 was amended making the provision for trial of rape cases or an offence under sections 376A to 376D, IPC in camera and publication of trial proceedings in such cases without the prior approval of the Court was also prohibited.

(vi) Custodial Rape: the clause 376C was added to punish a person who abuses his position of authority or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse not amounting to the offence of rape for a term not less than 5 years which may extend to 10 years.

(vii) Intercourse with wife during judicial separation prohibited: sexual intercourse with one’s own wife during judicial separation without her consent is punishable under 376B with imprisonment for a term not less than 2 years which may extend to 7 years.

(viii) Minimum punishment for rape: minimum punishment for rape under section 376 clause (1) provided imprisonment for 7 years which may extend to life and imprisonment for 10 years which may extend to life under clause (2) of IPC.

(ix) Prohibition of character assassination of prosecutrix:  The Criminal Law (Amendment) Act 13 of 2013 inserted a “Proviso clause” to section 146 of The Indian Evidence Act, prohibiting questions about prosecutrix character in cross-examination.

Are Rape Laws gender-neutral?

The rape laws defined under IPC recognizes only female victims. Several countries such as United Kingdom, United States, Australia have provisions for gender-neutral laws. India is still behind in making laws for protecting male rape victims; it is a breach of their right to equality and right to life and personal liberty. The POCSO Act does protect male minors but there are no laws as to protect adult males from sexual offences. Section 377 also does not cover the whole issue of male rapes while criminalizing carnal intercourse against the order of nature. The number of false rape cases has also been increasing. The mental trauma that a false accusation can cause has been recognized for other offences but laws relating to false rape accusation are still to be made. This only adds to the unfairness of laws that a male accused is subject to in the country.

Status quo of rape laws in India

The current rape laws in the country have proven to be not as effective. However, with the increase of punishment and more strict laws defining various aspects of consent has helped in understanding the case of sexual offence in a new light.

Marital rape is an issue which has not been mentioned in the Indian laws; consent is a major condition in any case of rape but consent after marriage is not vital for sexual intercourse according to the laws. This breaches the right of bodily integrity of a person.

The long battle to get justice has often made the victims to not opt for reporting the crime and the social stigma that a case of rape can cause only worsens the situation. The victims needs proper counselling to inculcate confidence and initiate a case against the offender seeking justice. The delay in judgement often helps the offender to get an escape which breaches the purpose of law; speedy trial of such cases is needed. Also, new provisions must be added defining the offence of child sex abuse, incest and marital rape in the IPC.

Conclusion

The laws relating to rapes and sexual offences need reform in both statutory laws and procedural laws. These crimes are a huge threat for the society and new policies and laws can only help us curb this problem. An environment needs to be created which ensures the public that there rights are protected at all cost. Our aim must be to protect every citizen beyond the barriers of age, sex, caste, creed from all kinds of sexual offences.

Author: Surabhi Jha

Editor: Kanishka Vaish, Editor, LexLife India.

Constitutional Law: Pardoning Power of President

Reading time : 10 minutes

Introduction

As per the Merriam Webster dictionary, the word “Pardon” means to excuse or to forgive for a fault. Pardoning or showing mercy or leniency can be seen as an act of grace or humanity, to show belief in morality, but it can also be seen as a Constitutional scheme determining ultimate authority that the public welfare will be assured by inflicting less pain. The Pardoning power of the President is mentioned under Article 72 of the Indian Constitution. The Article grants the President the power to grant absolution, remission show leniency or excuse any punishment in situation where a death sentence has been issued. Apart from the President, the Governor also has the power to grant a Pardon under Article 161 of the Indian Constitution.

Jurisprudence behind Pardon

The jurisprudence behind Pardoning is that it would create a sense of guilt. The underlying philosophy in the “Pardon” is “every civilized country recognizes and has, therefore provided for the Pardoning power to be exercised as an act of grace and humanity in proper cases, without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tampered with mercy.”[1]

The Pardon exercised, acts as an act of mercy and humanity to show existence of morality. It reflects a two-fold purpose – to prevent any judicial errors to happen and to provide relief from a sentence that is considered to be harsh. The power to Pardon helps create sense of belief in the public to be able to depend on the system, the only the legitimate conclusions will be taken out. The main aim of the power is to work for the welfare of the public. The power allows one to be removed from the title of accused to that of an innocent, hoping to create a sense of responsibility and provide protection.

Provisions under Constitution

The Pardoning power of the President was first mentioned in Article 59 of the Draft Constitution. It was later adopted with minor amendments under Article 72 of the Constitution of India, the power to Pardon is mention as:

“72. Power of President to grant Pardons, etc., and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant Pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence-

(a) in all cases where the punishment or sentence is by a Court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub- clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3)Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.[2]

According to the Article, the President has the power to grant Pardon, reprieves or remission of punishment or sentence where the punishment or sentence is by a Court martial, a death sentence, or for an offence relating to the Union.

The term Pardon indicates removal of both, the sentence as well as the conviction absolving the convict. The term Commutation denotes substitution of one form of punishment with another lighter punishment. The term Remission implies a lesser duration to the sentence with same nature. Respite denotes awarding a lesser sentence due to an important fact and Reprieve implies holding out a death sentence for a period of time.

The Governor is also provided with the power to Pardon under Article 161 of the Constitution of India.

According to the Article,

“161. Power of Governor to grant Pardons, etc., and to suspend, remit or commute sentences in certain cases

The Governor of a State shall have the power to grant Pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”[3]

Judicial review of Pardon of power

The question of the executive exercising the power to Pardon has always been in question, but with the landmark judgment of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, it was held that the power underlying under Article 72 and 161 would be subjected to judicial review.

The nature and ambit of the Pardoning power has been questioned through a number of cases. In the Ranga Billa case, the appellant filed a writ petition in the Supreme Court, challenging the President’s discretion to grant Pardon because no reason was given for the rejection of his mercy petition. The Court dismissed the petition observing that the term “Pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned. Before this, in cases like Maru Ram v Union of India and Dhana v State of West Bengal, the Supreme Court stood on its opinion the power to Pardon should not be exercised by the President or the Governor on their own but by the central or the state government or with its involvement.

But in the case of Kehar Singh v Union of India, the Supreme Court held a different opinion. It focused on the fact that the provision under the Articles has a wide amplitude, contemplating a number of categories and kinds of cases with varying situations. The grant by the President is an act of mercy and grace and not a matter of right. The grant is used for the public welfare varying from case to case. It was said that since the power exercised by the President is exclusively of administrative nature, is not justiciable.

In Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, the Court set aside the decision of the then Governor, remitting the sentence and warned, that the exercise of the power would be tested by the Court against the maintenance of Rule of Law. The Rule of Law is the basis of all Courts’ decisions. It is to remind that the power to Pardon is a matter of discretion with certain standards, it is not a matter of privilege but of duty. The Supreme Court, to prevent the undue exercise of this power against religion, caste, political loyalty or any other discrimination, settled that the power to Pardon of the President and the Governor under Article 72 and 161 of the Constitution would be subjected to judicial review.

Understanding the Exercise of Pardoning Power 

Article 72 of the Indian Constitution mentions the power of the President to grant Pardons reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.

Although the Article mentions the power to the President clearly, the President cannot independently exercise the power. In cases like Maru Ram vs Union of India in 1980, and Dhana vs State of West Bengal in 1994, the Supreme Court stated that the President or even the Governor cannot use the power with interference of the Central or State government. In several cases the Supreme Court has directed the President to act as per the advice of the Council of Ministers while deciding mercy pleas.

Although Article 72 and 161 of the Constitution provides both the President as well as the Governor the power to pardon, the President has the superior hand. The President has the wider scope than that of the Governor. The President has the power to grant pardon where punishment is sentenced by a court martial, but the Governor has no such power. Also, the President can grant pardon in cases of death sentence but the power of Governor does not extend to cases of death sentences.

Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Conclusion

“I have always found that mercy bears richer fruit than strict justice” – Abraham Lincoln

Taking the thought forward, the President is one of the executive to have the power to provide a way of justice. Although the President does not has the absolute power and is governed by the Council of Ministers, there has been a significant amount of discussion regarding the constitutionality of the President having the power to grant pardon. The framers of the provision kept in mind the misuse of power that could happen in the line of justice. The provision of pardon helps create a check in the system, which the State can avail.


[1] Anonymous, https://www.advocatekhoj.com/blogs/index.php?bid=818515a96137da34755614124&bcmd=VIEW

[2] A.72, The Constitution of India

[3] A.161, The Constitution of India

Author: Srijeeta

Editor: Kanishka Vaish, Editor, LexLife India.

Constitutional law: Doctrine of Basic structure

Reading time : 8 minutes

INTRODUCTION

Much like any other Charter, the Constitution of India has fundamental features that capture the essence of it, without which, it would lose its key attributes.  The Basic Structure Doctrine assume the role of the protector of these key attributes and lists down features of the Constitution that are out of the purview of  amendment as to uphold constitutional liberty.

The Basic Structure Doctrine is one evolved by the Supreme Court of India so as to curtail the amending power of the Parliament. The Parliament of India, through Article 368 of the Constitution is vested with the power to amend the Constitution; however, the Basic Structure Doctrine defines the extent up to which such a power can be exercised. The Constitution is deemed to be the supreme law of the nation, and through its Preamble states its key attributes. The Doctrine safeguards the supremacy of the Constitution and prevents amendments to its basic features.

AMENDMENT POWER under Article 368

 The will of the people is represented through the Constitutional provisions and becomes the absolute law of the Country. For a law to be dynamic, it is to encompass within itself the quality of flexibility and the quality to respond to change adequately.

Article 368 of the Indian Constitution grants the parliament a formal method and authority to amend the Constitution when need be so. Amendment is the process of adding, correcting or modifying a pre-existing statue so as to remove any irregularities from the same. Oxford’s Dictionary of Law. The Article states that the Parliament may add, vary or repeal any provision of the Constitution by Special Majority in some cases and Special Majority and Ratification by at least half of the State Legislatures.

The Parliament of newly independent India, in 1951, amended for the first time Part III of the Constitution and added Article 31(A) and 31(B) by the Constitution’s First Amendment Act, 1951 to insert Right to Property as a Fundamental Right. However, the Article reduced the purview of fundamental rights and accumulated majority of the land under the control of the feudal landlords.

Amendments 31(A) and 31(B) were challenged in the Shankari Prasad v. Union Of India case, 1951 (1951). AIR. SC 458 on the grounds that they abridged the citizens from their fundamental rights and hence was not allowed by Article 13.

Article 13(1) states that all laws that are inconsistent with Part III of the Constitution shall be held void. Clause 2 of Article 13 further prevents the Parliament from making any laws that infringe upon the fundamental rights safeguarded and any laws in contravention of the same will be held void ab initio.

The Hon’ble Court in the Shankari case held that Article 13 is applicable only to the laws made by the Parliament under their Legislative power and that Constitutional Amendments did not come within the ambit of the Article.

In 1965, this issue of land reforms was raised again in the Sajjan Singh v. State of Rajasthan 1965 AIR 845, 1965 SCR (1) 933 case where the validity of the Constitution 17th Amendment Act, 1964, which added certain land legislations to the Ninth Schedule was challenged. The Hon’ble Supreme Court once again by 3-2 majority held that the amending power conferred to the Parliament by the virtue of Article 368 was limitless. However, Justice J.R. Mudolkar in his dissenting opinion stated that changing the basic features of the Constitution would amount to re-writing the Constitution itself and hence the amending power should be curtailed.

IMPORTANCE OF THE GOLAK NATH CASE

In 1971, the Hon’ble Supreme Court interpreted Article 368 in the Golak Nath v. State of Punjab 1967 AIR 1643, 1967 SCR (2) 762 case.  The eleven-judge bench headed by the then Chief Justice Subba Rao: firstly held that Article 368 merely lays down the procedure for Constitutional amendments and the not extent of such power. Furthermore, the Hon’ble Court held that the amending power and procedure, for the Parliament, specifically dealing with legislative amendments can be found under Articles 245, 246, 248.

Secondly, The Court held that whereof fundamental rights were in question, the Parliament were under ‘implied limitation’ and  had no authority to amend them even with complete majority. The Court identified that fundamental rights are absolutely sacred to the existence of an individual and could only be amended by the convening of a Constituent Assembly.

THE CURIOUS CASE OF KEHAVANANDA BHARATI

To counter and abrogate the judgment pronounced in the Golak Nath case, the Parliament under the then ruling party of Congress, headed by Indira Gandhi inserted an additional clause to Article 13 by the 24th Constitution Amendment Act, 1971; which stated, stated that Article 13 did not apply to any amendments made under the virtue of Article 368. Similarly, an amendment was made to Article 386 stating that any amendment made under this Article shall not be subject to the provisions under Article 13. The Constitution 25th Amendment Act, 1971 introduced Article 31(C) which gave Directive Principles significantly more importance than fundamental rights.

The historic and celebrated case of  Keshavananada Bharati v. State of Kerala (1983) 4 SCC 225; AIR 1973 SC 1461 marks the inception of  Doctrine of Basic Structure. The case challenged the Constitution 24th, 25th and 29th Amendment Act, 1971 on the grounds that it was against the founding principles of the Constitution and should be held ultravires (against the Constitution).

The thirteen and largest judge bench formed of the Supreme Court held that the Constitution 24th Amendment Act, 1971 was valid, as, the word ‘law’ in Article 13 meant only ordinary law and the Article did not extent to amendments made to the Constitution under Article 368. Adding to that, the Hon’ble Court held that the Parliament had power to amend any part of the Constitution including fundamental rights by the virtue of Article 386; however, stated that an amendment cannot be such which takes away the original spirit or rebuilds the basic structure of the Constitution; thus, upholding that the basic features of the Constitution need to be intact after an amendment.

While in the Golaknath judgment, the Hon’ble Court held that no fundamental rights could be amended at all, in the Keshavananda Bharti case it was held that only those fundamental rights which constitute the basic structure of the Constitution cannot be amended; and in doing so, gave birth to the Doctrine of Basic Structure.

ESSENTIALS OF THE BASIC STRUCTURE DOCTRINE:

The Keshavananda Bharti judgement laid down the following as the essentials of  the Doctrine of Basic Structure:

  1. Supremacy of the Constitution
  2. Separation of Powers
  3. Democratic and Republican form of Government
  4. Unity and Sovereignty                 
  5. Federalism and Secularism                   
  6. Parliamentary form of Governance

EXPANSION OF THE DOCTRINE

After the landmark case of Keshavananda Bharti the Doctrine of Basic Structure saw great expansion and development. The same can be explained through the following case laws:

  • Raj Narain v. Indira Nehru (AIR 1975 SC 2299) : In the present case, the Hon’ble Supreme Court was to deliberate on the Constitution 39th Amendment Act,1975 which inserted a new Article 329 A and  retrenched the Courts from adjudication upon elections of the President, Vice President, Prime Minister and the Speaker of Lok Sabha. The Hon’ble Court upheld the 39th amendment but struck down the part which tried to strangle Judicial Review. It was further held that Judicial Review shall be a basic feature of the Constitution.
  • Minerva Mills v. Union of India (AIR 1980 SC 1789): Which resulted out of the Constitution 42nd Amendment Act, 1976, held a harmony is to be achieved between fundamental rights and directive principles and the same will be a basic feature of the Constitution.
  • Waman Rao v. Union of India. (1981). 2 SCC 587: This judgment opened the purview of Judicial Review to every judgment passed after the Keshavanana Bharti Judgment.
  • Kihoto Hollohan v. Zachillhu (1992 SCR(1) 686): This case challenged the constitutional validity of the Constitution 52nd Amendment Act, 1985 which stated the rules for defection on the grounds that it abridged freedom of speech and right to dissent which fundamental to a parliamentary democracy. Through this case ‘free and fair elections’ were bought under the ambit of the Basic Structure of the Constitution.
  • Indira Sawhney v. Union of India (1992 (3) SCC 217 [2]): The Supreme Court in this case examined the scope of Article 16(4) which lays down provisions relating to reservation. Through this case ‘Rule of law’ was held to be a basic feature of the Constitution.

CONCLUSION

Just as a Gospel prescribes commandments for its disciple, the Constitution of India prescribes the commandments for every India to be followed. The Constitution captures the essence of being Indian since the conception of the nation itself. The Doctrine of Basic Structure has been put in place to thoroughly guard these attributes of our Constitution, which the founding fathers deemed necessary for the functioning of a secular, democratic, republic.

As correctly stated in the Sajjan Singh case, if the basic attributes of the Constitution are altered, it would amount to re-writing the constitution itself and hence the sanctity and supremacy of the Constitution should be vehemently protected. The Doctrine of Basic Structure has, since its inception, encompassed various attributes within its ambit which play a key role in maintaining social order.

Author: Fareedunnisa Huma

Editor: Kanishka Vaish, Editor, LexLife India.

CONSTITUTIONAL LAW: CURIOUS CASE OF CURATIVE PETITION

Reading time : 10 minutes

Introduction Vis-à-vis Origin Of Curative Petition

To begin with, it is significant to know what is actually meant by Curative Petition & when & how this petition is beseeched. Grown from the revolutionary case of Ashok Hurra to the suitable usability of the case of Nirbhaya. The Curative Petition has provided & proved that here & now judiciary will make all efforts to give right & appropriate together with unprejudiced justice to the petitioner. Basically, it is the last constitutional recourse accessible for grievance redressal subsequent to the dismissal or exhaustion of the review plea or petition. Consequently, the aggrieved person can request the court of law to review & revisit the decision ruled by them. It is intended to make sure that there is no breakdown of justice & also to avert the mishandling of the entire process. The entreating of the petition is essentially decided by the judges-in-chamber i.e. in-camera session, unless a particular request for an open-court hearing is allowed. The Indian courts have been extremely watchful in the invocation of this petition as this is the last remedy available after utilizing all the other alternative remedies.

The notion of Curative petition has its root & is sprouted form the momentous case of Rupa Ashok Hurra v. Ashok Hurra & Anr. where a question regarding the avaibility of the relief to the grieved person against the ultimate ruling of the Supreme court subsequent to the dismissal of review petition was raised. Every curative petition beseeched is grounded on the principles put forth by the Supreme Court in the aforementioned case. It was ruled by the apex court that in order to avert the severe abuse of judicial process in addition to wiping out the possibility of foundering of justice, it might review its rulings in the process of exerting its intrinsic powers. The court employed the Latin maxim actus curiae neminem gravabit, connoting that an act of the court shall prejudice nobody. As stated above, the purpose of Curative Petition is twofold(i) to circumvent miscarriage of justice &; (ii) to avert abuse of process. For this purpose, the word curative was proposed by the court. Nevertheless, it is necessitated that the petitioner explicitly states the grounds cited there had been implored in the review petition which was filed earlier & subsequently it was dismissed by circulation (i.e., in open-court, nowadays instructed for multiple cases like death penalty review petitions, etc.).

For the valid invocation of the Curative Petition, it is ought to be authorized by a senior advocate then, afterward, it is without fail circulated amid the three Seniors most judges & the judges who approved the impugned judgment, if available. It is to be taken not of that there is no time limit provided to file a Curative Petition. Under Art.137 of the Constitution of India, the Supreme Court is bestowed with the power to review or revisit its own orders or judgments.

Constitutional Backdrop Of Curative Petition

The notion of Curative Petition is deliberated by the Art.137 of the Constitution of India. It provides that in the matter of laws & norms framed by the Parliament under Art.145 of the Constitution of India, the  Supreme Court is vested with the superior power to review or revisit any judgement decided or order passed by it. Such a Curative petition requires to be filed within 30 days from the date of judgement or order passed.

Essential Principles Established By The Apex Court To Invoke Curative Petition

The Supreme court has determined explicit grounds for the purpose of beseeching curative petition which are as follows:

  1. Curative Petition can only be filed once the review plea is exhausted & consequently dismissed against the final judgment by the court of law.
  2. Curative Petition can only be taken into consideration only if the petitioner successfully shows that their principle of natural justice (audi alteram partem) has been violated & that they were not provided with the proper occasion to be heard & the judgment has been passed accordingly.
  3. Such a petition must be compulsorily first passed on to bench of three Seniors most judges & the judges who approved the impugned judgment, if available. It is to be noted that, only if the majority of the judges ascertains that the matter requires hearing then it must be listed before the similar Bench.
  4. Importantly, Curative Petition should be infrequent instead of usual.
  5. At any point of contemplation of the curative petition, the Bench can request a senior counsel to facilitate it as amicus curiae namely friend of the court.
  6. It is usually determined by judges-in-chamber until a particular demand for an open-court hearing is permitted.
  7. The emergency costs can also be imposed by the court of law to the petitioner in case, his petition doesn’t fulfil the abovementioned conditions & prerequisites.

Process To File A Curative Petition

For the valid filing of the Curative Petition, the Supreme court must be vested with the immanent & unqualified jurisdiction to entertain such petitions. According to Order XLVIII, Supreme Court Rules 1966, subsequent to the dismissal of the review petition, under Art.137 of the Indian constitution , which encompasses the apex court’s power to review or reconsider its own decisions & orders, through circulation,  a curative petition could be filed under the immanent jurisdiction of the Supreme Court to cure the recurrent exploitation of its process & also to cure the severe denial of justice in accordance with the principles set out in the consequential case of Rupa Ashok Hurra v. Ashok Hurra & Anr. The petition could be either civil or criminal in nature. Such a petition will then be passed to the three senior most judges & the judges who has passed the challenged decision. Notedly, the petition can also be refuted by the in case, if such petition has no merit, but if plea believes to be fair & correct it may be listed before the similar bench for hearing.

Furthermore, the affirmation which may go along with the Curative Petition must evidently state that the plea is administered by the decision ruled in the infamous Ashok Hurra case, it must not entail any novel grounds excluding the ones that had been cited in the review petition & was discharged on circulation. It must go with the senior Advocate’s certificate that the petition fulfills the necessities set out in the aforementioned case, authorized or attested copy of the judgement/ order & also a certificate of the Supreme Court’s Advocate-on-Record (AOR) so that it is the first Curative Petition in the challenged matter. It is to be noted that, the Limitation Act, 1963 is not applicable on the filing of the Curative Petition & the same court fee will be charged that has been charged in the initial proceedings.

While filing the Curative Petition, one has to take in account that there rests no intra-court appeal & the well-established principle that the court’s action shall prejudice nobody. The notion of Curative Petition came into effect bearing in mind that it would be an exceptionally robust discretionary power & could be practiced only in the occasional circumstances. The filing of the Curative Petition & determining it in light of obvious illicitness & unfairness in the exceptional cases, the significant fundamentals such as the doctrine of stare decisis & the principle of finality & legal certainty of law stated by the Supreme Court should be essentially taken care of.

Benefits Of Filing Curative Petition

  1. Curative Petition provides preclusion against the bigotry, it is an efficacious instrument against conceivable biasness of the Indian judicial system & judges.
  2. Such a petition offers a way to be heard if unheeded & not provided just occasion of representing themselves in the court of law.
  3. This petition also averts any sought of misconception that would emerge in the process followed or stating the judgement.

Drawbacks Of Filing Curative Petition

  1. Curative Petition makes the judicial process prolonged & cumbrous as it is a supplementary step in cases in which this petition is beseeched.
  2. Such a petition goes against the apex court’s powers, which is an eminent institution & questions its veracity.

Momentous Case Laws Where Curative Petition Was Implored

The case of Rupa Ashok Hurra v. Ashok Hurra & Anr., was a marital cacophony where the question of cogency of a divorce decree reached the apex court subsequent the woman retreated the consensus she had given to divorce by mutual consent. The ruling held that technical glitches & trepidations over the resumption of cases & had to submit to a final forum for eliminating errors made in a decision where judicial administration might be impacted.

It was decided by the court that a Curative Petition can be besought only if the petitioner successfully proves there was an infringement of the principles of natural justice (audi alteram partem), & that he wasn’t provided with an occasion to be heard by the court before ruling out an order. Further, it will also be admitted where a judge is unsuccessful in disclosing the facts that raise the reasonable apprehension of bias.

The apex court further stated that Curative Petitions should be beseeched infrequently instead of regular, & must be submitted after duly examining all the merits. A Curative Petition should be backed by authorization by a senior advocate, establishing considerable grounds for submission. It should be primarily passed to a three senior-most judges’ bench & the judges who passed the concerned ruling, provided if available. Only when a majority of the judges settle that the matter requires hearing, it must be listed before the similar Bench.

Nevertheless, it was stated by the court that at any point of contemplation of the Curative Petition, the concerned bench is vested with the discretion to request a senior counsel to aid it as court’s friend. At any stage of consideration, if it is found that the petition lacks merit & is irksome, it might levy exemplary costs on the petitioner

Another case that implored Curative Petition is Naresh Shridhar Mirajkar v. State of Maharashtra, considering the writ petition filed in the apex court contested an oral order of the Bombay High Court.  The court in this case stated that, it was proposed that the High Court might issue the writ to the Supreme Court & to other High Court as well & single bench in both High Court & Supreme Court might issue the writ to another quorum of Judges on a bench in the same court. However, this was regarded as a wrong presupposition.

Notedly, the High Court isn’t eligible to issue writ to the apex court because unlike an appeal which is a petition made to a higher court, the writ is a command from the higher to the lower court or any government official to take certain action according to the law. Likewise, a High Court is forbidden to issue a writ to another High Court. The writ doesn’t go to a court placed on the same plane in the subject-matter jurisdiction.

Where the district court exerted the powers vested with the High Court, the writ issued would be unacceptable. Subsequent to hearing both the parties in all justice, it was noted by the bench that the court’s jurisdiction under Article 32 of the Indian Constitution can’t be beseeched & impugn a final decision or order passed by this court post using the last recourse provided under Art.137 read with Order XL Rule 1, Supreme Court Rules, 1996.

The infamous case of Yakub Abdul Razak Memon v. State of Maharashtra where the Curative Petition of Yakub Menon’s serial blast filed by him subsequent to the death penalty judgment on dismissal of review petition. But the apex court repudiated his petition, further alleging that no rights were unfavorably impacted & there was no non-objectivity in rendering the judgment. Justice Kurian didn’t approve with the opinion of Justice Anil Dave, he accentuated that unquestionably, Curative Petitions should be heard in keeping with the regulations established by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & Anr.

In the much celebrated case of Naz Foundation Trust v. Suresh Kumar Koushal, the judgment rendered by Justice(s) S. A Bobde & Ashok Bhushan illuminated the position that it might not always be vital to examine the merits of the case given by the bar. The thing that is to be taken note of is that the Curative Petition was brought before the CJI, since the issues were of significant importance & public interest, the Curative Petition was brought before the CJI, to be listed before the appropriate bench.

In C.B.I. v. Keshub Mahindra, it has been made clear that the Curative Petitions is not administered by the provisos envisaged under The Limitations Act 1963, but the court also made it very clear that the petition is required to be filed within a rational time. In the instant case, the Curative Petition was dismissed asserting that no acceptable reason was cited in the petition clarifying the reason that why it took 14 years for the petitioners to beseech the last available resort & file the Curative Petition.

In the horrendous Nirbhaya Gang Rape Case, the fast track court found four accused of rape & murder & were consequently sentenced death penalty. Later, Delhi High Court as well upheld the decision of the fast track court. The Supreme court repudiated the review petitions of the three out of four convicts & were sentenced death penalty. Curative Petition was filed by the Counsel for the convicts in the apex court which was refuted by the court & consequently mercy petition was filed was also dismissed. Little short while later, the Delhi Court issued a death warrant for the all the four convicts in the case.

Conclusion

It is undisputed that justice is an essential element for the purpose of having an idyllic society. Judges of any court aren’t Gods & are bound to make errors too as they are human as well & as it goes without saying to err is human, it is normal for them to make mistakes eventually. The verdict rendered by the apex court is final, conclusive & binding & therefore can’t be reviewed or reconsidered. There is no intra-court appeal against the decision delivered by the Supreme Court. However, there are quite a few voids where distressed parties do have an opportunity to pursue redressal by means of review or curative petition. With the purpose of ensuring fair functioning of the judicial system the concept of Curative Petition was introduced to rectify any fallacy that could arise in the decision rendered by the apex court.

With the critical analysis of the notion of Curative Petition, it can be certainly said that it is the final accessible judicial relief & is solely grounded on the judicial discretion. Such a petition was introduced in the Indian Judicial System with the purpose to rectify the inadvertent human mistakes that can be made even by the judges & to deliver the accurate judgement & for this the apex court has also taken sworn to make all the possible efforts.

Author: Vaidehi Gupta, from Tamil Nadu National Law University, Tiruchirappalli.

Editor: Kanishka Vaish, Editor, LexLife India.

Media Trials: Guilty Until Proven Innocent?

Reading time: 8-10 minutes.

Article 19(1)(a) of the Indian Constitution secures the right to freedom of speech and expression, which though does not directly concern itself with freedom of press, numerous precedents have considered them to be mutually inclusive terms. It was held in Indian Express Newspapers v Union of India (1985 SCR (2) 287)that iota of such freedom would be calculated to be free from interference from any authority “which would have the effect of interference with the content and circulation of newspapers.”

Often known as the fourth pillar of democracy, the media has always played an important role in churning out debates over the existing legal scenario of the country. While the police can be bribed and manipulated by those in power, it is the media that reaches echelons that are out of the reach of the police or the judiciary. For instance, the impeachment of the 42nd U.S. President Bill Clinton or the arrest of Indian tycoon Harshad Mehta was utterly impossible when the powers of the state actors were totally crippled by virtue of their supremacy, power or authority. It was the wide media coverage and the resultant repercussions, that left the authority no choice but to take reasonable action. In this way, the media mirrors the working of the society and promises to bring a positive out-come with greater transparency, accountability and mass awareness.

Media Trials

Even though the benefits are large, the cons cannot be overlooked. The locus of the problem lies in a situation when the media changes its position from being an unbiased reporter to an opinionated influential justice evaluator. The Cases like Aarushi Talwar, Nanavati, Jessica Lal or even Sushant Singh Rajput have been complete examples in defining the role of media in instilling the minds of people with a perspective based on emotional appeals, rather than on a thorough investigative process that analyses the cases based on facts- as done by the investigative authorities. These situations identify themselves as being classic examples of media trials.

Finding its prominence in the case of  RK Anand v. Registrar (Crim. App. No. 1393 Of 2008), such trials refer to the impact of journalistic coverage of a person’s reputation creating a mass perception of a person’s guilt, sometimes without any conclusive evidence and simply based on opinions, regardless of the verdict pronounced by any court of law. The focus remains on the competition with other similarly placed forums, with little importance given to the veracity of facts.

The Constitution definitely does not give unbridled rights to the media with Article 19(2) reasonably restricting its ambit in accordance to the needs of the society and the authority of the government. Such “reasonable restrictions” can be based on a plethora of factors like “state security” or “contempt of court” and “defamation” among others. But applying such standards to the restriction of media influence requires a certain extent of impartiality of the administration which leads to the pertinent question- how far is the journalistic freedom applicable?

Derogation of the Rights of the Accused

The principle of “innocent until proven guilty” was officially incorporated by the United Nations in its Declaration of Human Rights, 1948 (Article 11, Section 1) has been further adopted by the European Convention for the Protection of Human Rights, 1953 (Article 6, Section 2) and the International Covenant on Civil and Political Rights, 1976 (Article 14, Section 2). While the Constitution enables media houses to express their views fearlessly, the same should not be exercised against the basic human dignity enshrined under Article 21 of the Indian Constitution of an accused person, because then it would be a derogation of the aforementioned principle and ideally lead to a violation of the principles of a fair trial. This would be in total derogation of the “Norms of Journalistic Conduct” as enlisted by the Press Trust of India which warns against propagation of fake news or defamation.

Another question that finds its way around the validity of such trials is the scenario when the accused is proven innocent or there is an acquittal. The scrutiny faced by such individuals and the reports based on assumptions still remain in the public space which, regardless of the outcome of the trial remain etched in the minds of the people and the accused has to face such scrutiny for the rest of his life.

Conclusion

The legal recourse to such a situation is present in the form of “Right to be Forgotten” enshrined by the European Union’s GDPR. It comes to the resume of people who have the right to claim erasure of news pertaining to them on the public domain, once such news ceases to be true. Such a recourse is still contingent in the Indian scenario on the passage of the Personal Data Protection Bill. Hence, as per the present legislative framework, the most a person is capable of doing is to claim damages under defamation.

Lastly, the media must be curbed from making an emotional appeal to the minority sentiment when a trial is concerned. The O.J. Simpson and the K.M. Nanavati case, striking a chord with the Black and the Parsi sentiments respectively showed the ability of a media trial in changing the course of the decision by putting a pressure on the judicial system based on false claims of marginalisation of a certain section of the society. Such a situation not only results in injustice but brings death to democracy. Hence, it is high time the recommendations of the 200th Law Commission is followed and media houses are told to assume social responsibility of imparting impartial news upholding the larger interests of democracy.

Author: Shouraseni Chakraborty, student of National University Of Study And Research In Law, Ranchi. 

Exams During COVID-19: Legal Angle

Reading time: 8-10 minutes

On 6th August 2020, a group of 11 students from 11 different states appearing for the National Eligibility cum Entrance Test (hereinafter referred to as “NEET”) and Joint Entrance Examination (hereinafter referred to as “JEE”) filed a writ petition in the Supreme Court seeking postponement of the said exams which are scheduled to be held in September 2020, to an unspecified further date, only after normalcy is restored post the covid-19 crisis.

Matters got interesting when a Gujarat based parents association also filed a writ petition on 8th August in the Supreme Court, seeking the Court’s direction to the National Testing Agency (hereinafter referred to as “NTA”) and the Ministry of Education to hold the exams as scheduled in September 2020. The NTA is an autonomous agency tasked with the conduct of these examinations and other national entrance examinations to various graduate and undergraduate courses.

The matters are scheduled to be heard in the coming few days in the Supreme Court. In this article, we try to analyse the two petitions, their background and the legal grounds for each of them.

Facts of the Issue

The JEE and NEET exams were originally scheduled to be held in April and May 2020 respectively. In view of the pandemic and the nationwide lockdown, they were rescheduled initially to July 2020 and later to September 2020.

Let us analyse the two petitions.

  1. Students Petition

The student petitioners’ argued the following:

  1. Due to the Covid-19 pandemic, many aspirants who may be infected or fallen ill will be deprived of their chance to appear for the exams. This, they allege is a violation of their fundamental right to equality under article 14 of the Indian Constitution.
  2. Keeping in mind the increasing number of covid-positive cases in the country,  and the possibility of the pandemic reaching its peak around mid-September, due to the congregation of students at the limited number of centres, there is a very high risk of infection of Covid-19.
  3. Where aspirants stay far away from the examination centres, the lack of transportation facilities like public transport, the limited restarting of railways, and the unavailability of safe food, accommodation and medical facilities near the examination centres, as also the added cost of these, will be a grave burden on parents whose financial condition has been affected due to the pandemic.
  4. Aspirants from Bihar, Assam and other North Eastern states which are badly affected by floods, will face severe problems in appearing for online exams due to connectivity issues caused by the floods and in reaching the offline exam centres due to lack of transport facilities.
  5. The petition requested for increase of offline examination centres and have one centre in each district of the country.
  6. The plea cites parallels with several other examinations including CBSE exams which were cancelled due to the pandemic.
  • Parent’s Petition

Parent Petitioner’s argued the following:

  1. Further postponement of the exam will lead to loss of the academic year for the students of the 2020-2021 batch.
  2. The admissions process, even post the result of these exam, is long and prone to errors and will severely affect the academic session of the students.
  3. The students have been rigorously preparing for these exams since they were in Class 10, and the repeated postponement will cause study fatigue, thereby affecting their result.
  4. Postponement will also increase their stress levels and lead to anxiety, trauma and other mental health issues, also severely affecting their performance in these crucial exams, which determine their academic career and affecting their whole future.
  5. The plea refers to the NTA notification dated 3rd July 2020 which had given students the option to make changes to their centre of choice and also assured the students that the NTA will make every effort to allot the city of choice to the candidates as per their choice.
  6. Like the students’ petition, this petition also cites parallels with other entrance exams which were also held during the pandemic.

The NTA’s Stand

The BBC conducted an interview with Dr. Vineet Joshi, the Director General of the NTA on 9th August where he was asked about the petition of the students.

While he said that he was unaware of the particulars of the petition, he made the following points regarding the conduct of exams:

  1. As per government guidelines, the number of test centres for JEE have been increased from 450 to 600, and for NEET from 2500 to 4000.
  2. Staggered timings for students to avoid congregation of students at one time in the exam centre.
  3. Provision of thermal screening and sanitizer at all centres for students. These timings will be mentioned on the admit cards.
  4. Admit card will be accepted as pass to enter and exit containment zones. The local administration will be informed about this.
  5. The aspirants were also given a window to change their exam centre of choice in July, as per their convenience.
  6. He also expressed hope that there is still one month to go before the exams, and by that time, the flood situation in the flood affected states will also improve tremendously.
  7. He also said that the Standard Operating Procedure issued by the Department of Higher Education, Ministry of Human Resource Development will be adhered to strictly ensuring safety of students.

Legal Provisions Involved

The students’ petition relies upon Article 14 of the Constitution which guarantees the equality of law and equal protection of law for all persons in the territory of India.

According to them, conducting the exams in September violates this right as the students who do not have a high speed internet connection or those staying away from exam centres and not having the financial means to reach the centre, as well as students hailing from flood affected states like Bihar, Assam and the North East will face severe difficulties in appearing for the exam, which will affect their chances of succeeding and in turn affect their career and future.

Article 21 provides for the right to life and personal liberty of all persons. This Article may also be invoked as the congregation of large number of aspirants at the exam centres may lead to high risk of disease and even death due to the infection. This violates the fundamental right to life of the students.

Legal Precedent

A recent petition filed by Abdulla Mannan Khan with respect to the Karnataka Common Entrance Test (hereinafter referred to as “KCET”) has many parallels with the petition filed by the students and the order of the Karnataka High Court in this matter can provide some guidance as to how the Supreme Court may look at both these petitions.

The Petitioner in this case pleaded for the postponement of the KCET on grounds similar to the students’ petition. The bench of Justices Arvind Kumar and M.I. Arun ruled that the exam should not be cancelled or postponed indefinitely, and it must be held in the interest of the students.

The Bench also said that all norms of social distancing must be followed not only inside the Centre but also outside it. Also, congregation of students must not be allowed to happen. The order also stated that due to the lack of adequate medical facilities and general physicians, the students who are Covid-19 positive must also be allowed to appear for the exam and separate rooms for such candidates must be provided, and under no condition should such candidates be stopped from appearing for the exam. 

Critical Analysis

While the Covid-19 pandemic is indeed an extraordinary situation which has affected all aspects of life, the NTA and Ministry of Human Resource Development have revised the schedule of these crucial exams twice.

While one petition places great emphasis on the right to life and equality as enshrined in the Constitution, the other places a greater emphasis on the students’ mental health and career opportunities and the loss of an academic year.

The matter is still to be heard by the Supreme Court. If the precedent of the Karnataka High Court petition is followed, it is likely that the Apex Court may allow the exam to be held, while directing the strict implementation of Standard Operating Procedure and guidelines for conduct of such examinations, to ensure safety of the students.

On the other hand, the Court may take a more cautioned stand and may direct the postponement of the exam or even cancellation of the exam. But this can create issues of its own. If it is postponed, when can it be held? There is no certainty as to when the pandemic will end or even be controlled as the vaccine trials go on in full steam. But it is highly likely that this entire academic year might be lost for all these students.

There are precedents of exams supporting both the petitions. While on one hand, the CBSE, Chartered Accountants exams were cancelled which support the contention of the student petition; the KCET and some other state entrance tests have been conducted during the pandemic.

Conclusion

As we saw that both petitions have their merits. On the one hand the right to equality and life as fundamental rights of the students and on the other side, the adverse impact due to stress, anxiety and trauma suffered due to the uncertainty around these exams for students who have toiled for almost 2-3 years just for this exam.

It remains to be seen as to which factors the Supreme Court attaches more importance to and how it balances these two issues.

Author: Hemant Kelkar.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Maternity Benefits of Contractual Workers

Reading time: 5-8 minutes.

Contractual employees are those workers who are hired for a certain amount of time till the project/work gets completed. Maternity benefits are those benefits which are given to women employees to protect their rights during pregnancy and after childbirth. Maternity benefits in India are governed by the Maternity Benefit Act, 1961. However, the provisions of the Act are only applicable to organisations having 10 or more employees, and to the women who have worked for at least 80 days in the 12 months preceding the date of their expected delivery. Women employed on a contractual basis did not find protection within the ambit of the Act and hence, were not entitled to benefits of maternity leave.

Recently, the Himachal Pradesh High Court in the case of Dr. Mandeep Kaur v. Union of India held that contractual employees are also entitled to maternity benefits, along with all consequential benefits, including continuity in service. This article analyses this decision, while discussing the facts of the case and the relevant provisions thereof.

Facts of the Issue

The Petitioner was appointed as a Medical Officer, on a contractual basis under the Respondents. She claimed maternity leave for 180 days with all consequential benefits, including continuity in service, being accorded to her. The Respondents on the other hand, opposed her claim by relying on the contract of employment executed between the parties, wherein no such covenant was present which made her entitled to maternity leave.

The Himachal Pradesh High Court opined in its judgement dated 15th July 2020, that irrespective of the fact that the contract did not contain a covenant with respect to the claim, the Petitioner was entitled to benefits of maternity leave. The court held “Even though, she was engaged on a contractual basis, yet, denial of, benefit of maternity leave to her, would, tantamount, to infringement; being visited, vis-à-vis, the salutary purpose, behind Article 21, of the Constitution of India.” The Court relied on various judgments including Municipal Corporation of Delhi v. Female Workers & Anr., which provided an “explicit mandate” vis-à-vis, the entitlement of maternity leave to women employees who are engaged on daily wages. Further, the Court placed reliance on two decisions- Rasitha C H v. State of Kerala and Rakhi v. State of Kerala, both of which held that contractual employees are also entitled to benefits under the Maternity Benefit Act, 1961.

Relevant Provisions

The relevant provisions here are of the Maternity Benefits Act, 1961. Under Section 2 of the Act, mentions all the cases where the Act is applicable. It mentions that the Act applies to factories, mines or plantations including Government owned establishment where people are employed for exhibition of equestrian, acrobatic and other performances. Moreover, it is also applicable to every other shop or establishment within the meaning of any law for the time being in force, which has ten or more employees.

Another provision relevant here is Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to a procedure established by law.

Critical Analysis

The judgment is the right way for securing and empowering working women’s rights in India. The country had passed the Maternity (Amendment) Bill, 2017 that increased the right to paid maternity leave for working women from 12 weeks to 26 weeks, which was the third highest in the world. Although, this was a commendable step taken by the government for working women, it was rather unfortunate that only 1% of all the working women could avail the benefit of this “phantom legislation”. The law was applicable to only those who work in a company with at least 10 employees which is a very miniscule proportion of the small share of India’s working women.

It is estimated that approximately 84% of the women work in companies with less than 10 employees which means they do not reap the benefits of the Act in place. Moreover, women employed on a contractual basis were also not entitled to the maternity leave benefits prior to the judgment. This implies that the majority of the beneficiaries under the Act could not reap benefits of its provisions. However, after this decision passed by the Himachal Pradesh High Court, a much larger percentage of working women in India would be entitled to maternity leave.

Further, the judgment is a breath of fresh air for pregnant women who are employed as they do not only get maternity leave until delivery, but are entitled to consequential benefits including continuity of their jobs. This is beneficial for the women even after childbirth.

Conclusion

The Court rightly upheld that even if a person is engaged on a contractual basis, but is denied the benefit of maternity leave, it would tantamount to the infringement of the right enshrined under Article 21 of the Constitution. Irrespective of the nature of their work, all working women are entitled to be treated with dignity and respect at their workplaces and therefore they must be provided with all the facilities for maintaining the same.

If a pregnant lady is forced to work even during the phase where she is carrying a baby in her womb, she may not even be able to perform her work efficiently. While that is one point to make, it is not the most important one here. Maternity leaves are important to be availed by women in order to protect their fundamental right to life. Moreover, the health of the baby she is carrying may also be affected if she is coerced to work during her pregnancy, which again, would tantamount to violation of the right to life of the foetus as well as the Mother by extension. Therefore, it is necessary that all women in the employment sector are given the benefits of maternity leave.

Author: Pranika Goswami from National Law University, Jodhpur.

Editor: Astha Garg, Junior Editor, Lexlife India.

Jawahar Bag Massacre: Legal Angle

Reading time: 8-10 minutes.

A petition has been filed in the Hon’ble Supreme Court regarding the 2016 Jawahar Bagh Massacre, by the wife of the Late Sh. Mukul Dwivedi (the then Superintendent of Police, Mathura) in which he and twenty-nine others were killed. The Petitioner has demanded an expeditious investigation by the Central Bureau of Investigation (hereinafter referred to as “CBI”) in the present case, which has not made much progress since it was transferred to it, due to the political strings involved in the case. The incident sheds light on the nexus between politicians and gangsters, raising issues of criminal conspiracy while showcasing the apathy of the authorities towards their profession. The author will also discuss the scope of right to speedy justice enshrined under Article 21, on which the case is based.

Facts of the Issue

The facts relate to the Jawahar Bagh Massacre of 2016, in which 30 persons had died and several others injured. The Petitioner’s husband and other police officers were instructed to break the boundary wall surrounding the Bagh, one day before the eviction of Ram Briksh Yadav and his associates. The confederate was occupying the Bagh for over two years and the authorities were compelled to evict them after the High Court at Allahabad issued a contempt Notice. This resulted in the authorities making plans to evict Ram Briksh Yadav and his men, however, their strong political ties with the ruling political party resulted in the plans being stifled. The politicians exercised their influence over the District Magistrate and Senior Superintendent of Police, Mathura, who ordered the Petitioner’s husband and other police officers to visit the site and gauge the implication of breaking the boundary walls. In the ensuing clash, the Petitioner’s husband and twenty-nine others lost their lives.

The Petitioner contends that the political ties of the accused men have hampered the investigation. She claims that even after the order of the High Court at Allahabad, to complete the investigation within two months in 2017 was made, the investigation has not been completed even after the expiry of forty months. She further alleges that the CBI has not even interrogated the politicians connected with the matter, nor has any punitive action been taken against the then District Magistrate and Senior Superintendent of Police of Mathura. Also, she states that her husband’s killing is part of a larger criminal conspiracy. Among other allegations of foul play, the Petitioner stated that her husband had not been eating properly and was stressed as he was not allowed to take any strict action against the miscreants. On the eventful day, her husband and other police officers were not allowed to carry any arms on the pretext that some of the policemen were new recruits. 

Hence, she moved the Hon’ble Supreme Court under Article 32, demanding the completion of the investigation within two months, stating that her right to speedy justice, guaranteed by Article 21 was being violated due to the non-completion of the investigation by CBI. She has prayed that two investigative teams of CBI be formed so as to look into the incident at Jawahar Bagh and to investigate the State Government for its inaction in the said matter. 

Legal Provisions Involved

Article 21 casts a negative obligation on the State to not deprive any person of his life or personal liberty, except according to the procedure established by law. The import of Article 21 has been expanded by judicial review, to encompass the right to speedy justice. In the present case, undue delay in the investigation of the case has resulted in the violation of the said fundamental right. It is a settled principle of law that speedy trial and time bound disposal of criminal cases is not only the right of the accused, but also the right of the victim under Article 21 of the Constitution of India, as recognised by the Hon’ble Supreme Court in Mangal Singh v. Kishan Singhand continuously reiterated in other cases.

Another vital aspect of Article 21 highlighted in the present case is the demand for a proper investigation by the CBI. It is trite law that no one can claim investigation by an investigative agency of one’s choice instead for proper investigation as decided by the Hon’ble Supreme Court [Sakiri Vasu v. State of UP: (2008) 2 SCC 409]. In the present case, the Petitioner has invoked the jurisdiction of the Hon’ble Apex Court, to get an impartial and proper investigation into the Jawahar Bagh Massacre, in which her husband and twenty-nine others were killed.

Critical Analysis

The case brings back the focus on the issue of delay in justice delivery in the country. A thorough and proper investigation must be carried out in the said matter so that the Petitioner can feel a sense of justice. Only when justice prevails in the true sense, can one claim that the rights conferred under Article 21 are being upheld. In the author’s opinion, a Court monitored investigation must be undertaken as grave issues of corruption, violence and support of political parties to the gangsters seem to be at play in the facts of the present case. In such a scenario, the investigation team must conduct a thorough and fair investigation.

In case, the CBI is not able to complete the investigation in two months, then the Court could grant some amount of extension. If not, the Court can initiate contempt proceedings against the Investigating Officer. This will act as a deterrent if the CBI decides to slack off during the investigation. Thus, these two measures could go a long way in ensuring a proper investigation in the Jawahar Bagh Massacre.

Conclusion

It is quite appalling to see that public authorities entrusted with the task of keeping the public safe, buckle under political influence. If not for such inaction, such an incident would have been avoided and one less petition would have been filed in the Hon’ble Supreme Court. Similar has been the case with the State police which also failed to conduct a proper investigation. Thus, the onus is now on the CBI to conduct a fair investigation and bring the accused persons to light. It is imperative that the people’s representatives must not use their influence to help their allies gain undue benefits. 

Author: Sreyas T. Manoj from The National University of Advanced Legal Studies, Kochi.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: Amish Devgan Case

Photo by Ekrulila on Pexels.com

Reading time: 8-10 minutes.

The Indian Constitution does not expressly guarantee the freedom of press or media in so many words. However, these freedoms are extended to all citizens, and by extension, to the press, in the form of the Fundamental Right to freedom of speech and expression under Article 19. In Express Newspapers Ltd. V. Union of India, Justice PN Bhagwati opined that, “the liberty of the press is an essential part of the right to freedom of speech and expression and consists of having no restraints.”

Therefore, it can be rightly said that under the Indian law, the media enjoys no special privilege. As a rule, the media has to act in subordination to the larger interests of the community. As Justice Hidayatullah noted in Ranjit Udeshi v. State of Maharashtra,  that “the Press is free to express opinions to change the political and social conditions or for the advancement of human knowledge.”

The Indian criminal justice system expects the media to observe certain norms of behaviour. Simply put, any attempt to breach the sanctity or reputation or existence of State organs, community or individuals shall be punishable under law. For example, Section 124A of Indian Penal Code (hereinafter referred to as “IPC”) relates to sedition; Section 153A of IPC relates to promotion or attempts to promote feelings of enmity or hatred between different classes of the citizens of India and Section 499 of IPC pertaining to defamation. These are the provisions of law commonly invoked, when the media fails to observe the aforesaid norms

Hence, it is often seen that media persons and journalists face criminal actions brought by an offended individual or a group of individuals. The present case pertaining to Amish Devgan is based on similar lines. Amish Devgan, the Managing Editor at News18 India, is facing the brunt of a similar set of offended group. He was made the subject of multiple FIRs after he used derogatory terms to refer to Sufi Saint Moinuddin Chisti during his news programme. Presently, the Supreme Court has issued an interim order extending the protection given to Devgan against any coercive action for allegedly hurting religious sentiments. 

Facts of the Issue

On June 15, 2020, Primetime news anchor of News18 India, Amish Devgan, on his news debate show called ‘Aar Paar’, used derogatory words to refer to Sufi Saint Chisti. During a heated debate on a PIL regarding the Place of Worship (Special Provision) Act, Devgan referred to the revered Sufi Saint, Khwaja Moinuddin Chisthi, also known as Khwaja Ghreeb Nawaz, as “aakranta (attacker) Chishti” and “lootere (looter) Chishti”. This incited waves of fury across the nation. Subsequently, multiple police complaints and FIRs were filed against Devgan in five states. Following this, Devgan made an apology on his show, claiming that he made an unintentional mistake. He also tweeted along similar lines.

It is important to note that the police complaints filed against the anchor invoked Sections 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 505 (Statements conducing to public mischief) and 34 (Acts done by several persons in furtherance of common intention) of IPC.

Devgan has now moved to the Apex Court to enforce a stay on these cases and seeks the quashing of the aforesaid FIRs lodged against him. According to his petition, he had “no intention” of hurting any religious statements and therefore, the FIRs should be quashed as it is a “small issue”. Currently, he has been granted protection against any coercive action.

Legal Provisions Involved

At the core of this case is Section 295A of IPC, which restrains anyone from committing any act which will infuriate the religious feelings of any class. While India has no laws related to blasphemy, the closest variant of it in our country, is Section 295A.

This section deals with ‘deliberate and malicious acts’, which have the intention to enrage the religious sentiments of a class, by insulting the religion’s or its beliefs. Actions for the purpose of attracting this provision, can be spoken, written, by signs or by any visible representation, insulting or attempting to insult a religion or religious beliefs.

Section 295A of IPC

The term ‘malicious and deliberate acts’ needs to be interpreted carefully, as every act which may offend a religious group or class, cannot be said to have been done with the intent to hurt the sentiments of said group.

Critical Analysis

If we focus on the debate during which this incident occurred, it has been noted that there was no prior reference made to Khilji in the entirety of the debate. It is also pertinent to note here, that just before Devgan made those derogatory remarks, a panellist had referred to Chishti as an exemplar of the peaceful spears of Islam in the subcontinent, therefore it is very curious and odd to find out that he confused Khilji for Chishti and why.

It is interesting to note that Devgan has made controversial anti-Muslim remarks and has been accused of biased reporting against Muslims before. In May, Devgan played a video of an altercation between locals during his show and claimed that, “a huge crowd has assembled after namaz from the mosque, wherein the police were manhandled.” However, this was contrary to the facts and a police case was filed against Devgan. He apologised after a few days for making such a mistake.

Previously, in April during another one of his shows, Devgan asked a Muslim panellist to “shut up and sit down” when he told Devgan not to add a Hindu-Muslim angle to the issue. This panellist was then muted.

One of the presiding judges in the present case, Justice AM Khanwilkar as a part of a three-judge bench has made a judgment on the misuse of Section 295A in Mahendra Singh Dhoni v. Yerraguntla Shyamsundar. Herein, the Supreme Court restricted the applicability of this section and excluded casual observations that were not driven by malicious intent. In order to invite penalty, “emphasis shall be made on the calculated tendency of the said aggravated form of insult and also to disrupt the public order.” The Court also remarked that, “insults made towards a religion carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not fall under this provision.”

Section 295A is a controversial provision due to its vagueness and susceptibility to misuse. It can have a chilling effect on the freedom of speech and expression and prima facie seems violative of Article 19(1)(a).

Conclusion

In recent times, there have been several debates regarding the decriminalisation of Section 295A, for various viable reasons. However, we need to balance both sides of this debate and narrow down the purview of this section to make sure it does not become an obstacle to the freedom of expression and of media in our country.

Author: Nikita Prakash from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India