INTER- STATE COUNCIL- AN UNDERUTILIZED CONSTITUTIONAL BODY FOR PARTING DIFFERENCES BETWEEN CENTRE AND STATE

Reading time : 12 minutes

INTRODUCTION

Part- XI (Article- 245 to 263) of the Indian Constitution enshrines relations between the Union and States comprising of Administrative as well as Legislative Relations[1]. The Articles explicitly demarcates the boundaries up to which the Union and State(s) can exercise their control[2], but irrespective of the facilitation that has been provided by the Constitution[3], there have been plenty of instances in history where the Union and the State have stood locking horns against each other in administrative as well as in legislative set up[4].

The framers of our Constitution provided an institutional framework for resolving such difference in opinion between Union- State(s), State- State by granting aid in the form of Article- 262 and Article- 263 of the Constitution. While the former is regarding adjudication of disputes relating to water of Inter- State rivers or river valleys, latter is with respect to and Inter- State Council[5].

ARTICLE- 263: THE ESTABLISHMENT OF INTER- STATE COUNCIL

This very provision finds its genesis in Article-135 of the Government of India Act, 1935[6] which is regarding setting up of an Inter- Provincial Council. The Article- 263 that finds its place in the 1950 Act read as follows-

 Provisions with respect to an inter State Council– If any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of

(a) Inquiring into and advising upon disputes which may have arisen between States;

(b) Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or

(c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, in shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure[7] 

The opening words i.e. “if any time” clearly expresses that the Constitution envisages this body to be constituted from time to time in the form of an ad- hoc council that is not at all permanent in character and is constituted when such council becomes a necessity in the opinion of the President to serve the public interest. Secondly, the functions of such Inter- State Council shall comprise of conducting an inquiry, investigation, discussion and giving advice upon disputes for better- co- ordination among the States and the Union. The nature of the work that has been allotted to this body is recommendatory in nature and is purely non- binding in character.

The power to constitute a council for better co- ordination in the federal set up has been used for the establishment of Central Council of Health in 1952, Central Council of Local Government and Urban Development in 1954, 5 Zonal Councils in 1956 and the Council for Sales Tax and State Excise Duties in 1968.

RECOMMENDATIONS OF SEVERAL COMMISSIONS CONSTITUTED IN THE PAST

The first commission that laid certain recommendatory remarks against the provision regarding Inter- State Council was the 1st Administrative Reform Commission that came up with its report in the year 1969[8].

However, the first Inter- State Council was set up late through a Presidential Order in the year 1990 which was totally based on the recommendations that were given by the Sarkaria Commission in the year 1988[9]. The Commission too opined that prior to 1967 there existed one party system in the Country as a result of which the differences inside the party was solved in the Party meeting through discussion, but post- 1967 there have been more and more parties emerging at regional level, as a consequence of which a permanent body like that of Inter- State Council is the need of the hour.

The 2nd Administrative Reform Commission[10] that was constituted in the year 2005 under the chairmanship of Mr. M. Veerappa Moily with the mandate to suggest measures to achieve a proactive, responsive, accountable, sustainable and efficient administration for the country at all levels of the Government on the one hand stuck to the belief that such councils should not be established on a permanent basis but on the other hand also recommended that the Council set up under Article- 263 shall be given the conflict resolution jurisdiction as well  along with the task of co- ordination among Centre- State relations.

The Punchhi Commission under the chairmanship of Justice Madan Mohan Punchhi (former Chief Justice of India) in its report of 2010[11] too laid down certain recommendations for proper and efficient functioning of the Inter- State Council, the concern of the commission was majorly on the irregularities that still persist in the business of the Council, the non- binding character of the recommendations and re- emphasised on the recommendations that were given by 2nd Administrative Reform Commission concerning the dispute resolution mechanism role of the Council.

The Inter- State Council was again reconstituted by the Government of India along with the Standing Committee to it, recently in the year 2019[12] which comprised of the Prime Minister as its chairman, Chief Ministers of all states, Chief Ministers of Union Territories having a legislative assembly and Administrators of Union Territories not having assemblies, and in situation Article- 356 has been proclaimed then Governor of such State as its members, Union Minsters, and some of them as Permanent Invitees[13]. Till date, about 11 meetings have taken place in this Council, the recent one being held in the year 2016 after a gap of 10 years, there were purely 4-5 agendas that were discussed in the meeting but the one that was an influential one was to consider the recommendations that were laid down by the Punchhi Commission in 2010[14].

INTER- STATE COUNCIL: A LEGAL PATHWAY TO COLLABORATE AND NOT TO COMPROMISE

In the recent times, the Union and the State Government have at multiple times on multiple issues have found themselves to be contrary to each other as a result of which circumstances leading to conflict have developed between the two constitutional bodies[15] and in most of the cases the tendency of the State Governments have been to take the aid of the Apex Court under its original jurisdiction[16]. Article- 131 of the Constitution gives the power to the Supreme Court to adjudicate on the disputes that arise between the Centre- State, State- State and Centre- State(s). But it is a matter of fact that our Courts form the time that it has been constituted have been overburdened with the amount of cases that are filed or have been filed in the past. As a consequence of which, the Parliament have delegated certain adjudicatory powers to the quasi- judicial institutions like Tribunals, Central as well as State Commissions, Ombudsman etc.[17]

Since in contemporary times there has been a hike in the number of disputes that arose between the Centre and the State (State shares of GST pending with the Centre, NRC- CAA, Conflict regarding 3 Farm Laws, Lack of proper co-ordination in prevention of COVID- 19 in India etc.), a permanent body under Article- 263 with its primary objective to resolve the differences between the Union and the States is the need of the hour[18]. The Council that is formed under this very provision has only limited powers with respect to inquiry, investigation and discussion, along with the power to given recommendations that prove to be non- binding[19].

This body can play a massive role in resolving the tensions between the Governments at various levels as the kind of role that has been provided to this body under Article- 263 is that of Mediation & Conciliation Centre and the positives of this dispute mechanism is that it emphasises on the communication between the parties and in certain cases where the communication is zero it aims to establishes a healthy environment of dialogue among them, secondly the motto of mediation practice is to reserve the relations and put a full stop to the issue at an early stage when there exists difference between the parties and prevent such issue to reach the stage of dispute/ conflict. This process from the initial stage attempts to move the respective parties from their positions to their interests with due assistance from the mediators.

INTER- STATE COUNCIL: A CONSTITUTIONAL BODY TO ACHIEVE CO- OPERATIVE FEDERALISM

In the past, recommendations as mentioned above have been made by the various commissions to grant adjudicatory functions to the Inter- State Council and make the recommendations that are made by it binding, make the scope of the Council inclusive so that it may act as an effective facilitator to resolve the issues to serve the public interest. The scope of this Council should be made broad enough so as to prevent the number of cases that reach the Supreme Court or create chaos among the general public. As opined by the Punchhi Commission that the proposal to make the recommendations binding can proved to be problematic as the Centre as well as the State Government is sovereign in its respective territory and making it binding on them may prove to be encroaching upon their domain[20].  

The Inter- State Council (ISC) as established by the Presidential Order of 1990, comes on a final decision through consensus and on such consensus the decision of the Chairman (Prime Minister) shall be final, and the Secretariat of such council is also appointed by the Chairman as it thinks fit[21]. These two characteristics along with the will of the President to constitute it when he thinks fit, gives us a clear image of total centralisation of power with the Union and the States de- facto being mere members with no powers of any character with them.

To establish a system of Co- operative Federalism in India, that was one of the agenda of the 11th meeting of ISC, the initiative should be taken firstly by reconstituting an Inter- State Council by amending the provisions of Article- 263 and establishing it as a permanent body with due consultation with the State Governments.

  • It should be reconstituted as a quasi- judicial body that derives its rights and duties from a separate statute and gives recommendations although not binding to the Government but attains binding character once a quota of recommendations have not been accepted by a Government in a year.
  • The members shall be appointed on the basis of eligibility criteria as set up after due consultation with the States, and shall comprise of officers from both the Union and States for a time duration of 5 years.
  • In case, the decision of the Council proves to unsatisfactory to any of the parties they have a right to approach the Supreme Court under Article- 131 of the Indian Constitution.

CONCLUSION

The idea that was originally the driving force behind having proper set- up for Centre- State relations was that Indian Governance shall be federal in nature with the Centre just acting as a supervisor for good governance[22], but the events (Partition of India, Kashmir Issue, Extremists activities in North East) that followed changed the entire scenario of that time as a consequence of which the Constituent Assembly drifted its way towards the idea of having a strong Centre, institutions like Inter- State Council totally fits under the characteristic of a strong Centre where decision making is purely with the Union and the States de- facto are for name sake.

In the contemporary times to achieve Good Governance, co-operation as well as collaboration in any field of life is necessary to do good, the Council can prove to be an initiative for achieving that ideal relationship between the Centre- State and State- State.

 At last the author intended to borrow some lines from the Punchhi Commission Report, 2010-

Federalism is a living faith to manage diversities and it needs to be supported by institutional mechanisms to facilitate co-operation and co-ordination among the Units and between the Units and the Union[23].


[1]The Constitution of India

[2] T.C.A. Srinivasavaradan, “Federal Management” 28 Journal of Indian Law Institute 169 (1986).

[3] Legal Service India, available at: http://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-IndianConstitution.html#:~:text=According%20to%20KC%20Wheare%2C%20in,nature%20and%20not%20strictly%20federal.&text=Basu%2C%20the%20Constitution%20of%20India,is%20a%20single%20united%20nation. (last visited February 6, 2021).

[4] SR Bommai v. Union of India (1994) 3 SCC 1

[5] Alice Jacob, “Centre- State Governmental Relations in the Indian Federal System” 10 Journal of Indian Law Institute 583 (1968); mint, available at: https://www.livemint.com/Opinion/c9OZI4C1jO0sBdWLDbfGmJ/The-interstate-council-needs-to-be-rejuvenated.html (last visited February 6, 2021).

[6] Government of India Act, 1935, art. 135.

[7]The Constitution of India, art. 263

[8]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/first-administrative-reforms-commission/ (last visited on February 7, 2021)

[9]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERIX.pdf (last visited on February 7, 2021)

[10]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/capacity_building.pdf (last visited on February 7, 2021)

[11]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (last visited on February 7, 2021)

[12] Editorial, “Inter- State Council reconstituted with Prime Minister as Chairman” The Economic Times, Aug. 14, 2019.

[13]Inter- State Council Secretariat, India, available at:  http://interstatecouncil.nic.in/wp-content/uploads/2019/08/The-Gazette-of-India.pdf (last visited February 8, 2021)

[14]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/isc-meetings/  (last visited February 8, 2021)

[15] M Gautham Machaiah, “Activate Inter- State Council” Deccan Herald, Jan. 30, 2020.

[16]The Constitution of India, art. 131.

[17] The Constitution of India, art. 323- A, 323-B.

[18] Dabur India Ltd v. State of Uttar Pradesh 1990 (4) SC 113

[19] Union of India and Others v. Valluri Basavaiah Chowdhary and Others (1979) 3 SCC 324

[20]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (last visited February 8, 2021)

[21]Inter- State Council Secretariat, India, available at:  http://interstatecouncil.nic.in/wp-content/uploads/2016/08/gazette_1.pdf (last visited February 8, 2021)

[22] State of West Bengal v. Union of India AIR 1963 SC 1241

[23]Inter- State Council Secretariat, India, available at: http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume1.pdf (February 8, 2021)

Author: Aniket Rai, U.P.E.S. Dehradun

Editor: Kanishka VaishSenior Editor, LexLife India.

Trends Regarding Death Penalty in India

Reading time: 8-10 minutes.

A Bench of Rajasthan High Court comprising Justice Sabrina and Justice Chandra Kumar Sonagara recently upheld the conviction of a murder accused named Mohan Singh alias Mahaveer Singh, for murdering a women by strangulation and thereafter cutting her abdomen and taking out certain organs. The High Court upheld his conviction for the offences under Section 302, 391 and 201 of the Indian Penal Code allowing a maximum sentence of death which was awarded to him. The accused was already convicted under other murder cases of heinous nature. The Court held that the prosecution had clearly established the guilt of the accused without any shadow of doubt, using circumstantial evidence as well as medical evidence including DNA reports, to negate any possibility of innocence of the accused.

This brings to light the controversy surrounding imposition of death penalty in India and the domestic legislations as well as case laws and conflicting global movement in favour of abolishing death penalty.

Facts of the Case

In February 2020, a Trial Court in Kota convicted Mohan Singh for murdering a woman whose naked body was found in a sack in March 2019, though rape charges could not be proved against him. Mohan has previously been convicted for killing three women for which he was serving a life sentence. In 1997, Mohan had committed a double murder of a mother and her daughter in Kota, whose bodies he damaged using a beer bottle. In 2003, he raped and strangled a woman for which he was serving life imprisonment in Sanganer Open Jail, from where he escaped in 2016 and committed the present murder. Mohan had not only murdered the women but had thereafter cut her abdomen and replaced certain organs with her kurti and petticoat which he sewed in her abdomen with a wire. The post-mortem report revealed the missing liver, ovary, uterus and part of the deceased’s intestine.

Looking at the heinous manner of the crime by the accused, as well as his criminal antecedents, the Rajasthan High Court upheld his conviction of death penalty. In 2018, the courts imposed 162 death sentences out which 58 were for murder along with a sexual offence and 45 were for murder only.

Legal Provisions Involved

Section 302 of the Indian Penal Code provides the punishment for the offence of murder. It punishes murder with death, or imprisonment for life and also a fine.

The IPC also allows imposition of death penalty for waging war or attempt to do so against the Government of India (section 121), abetment of mutiny (section 132), abetment of suicide of a child or an insane person (section 305), kidnapping for ransom (section 364A), dacoity with murder (section 396), for repeat offenders in case of rape (section 376E) and by virtue of Criminal Law (Amendment) Act, 2018 for inflicting injuries which causes death or causes the rape victim to be in a persistent vegetative state (section 376A) or for committing rape on a women under twelve years of age (section 376AB) and gang rape of women under twelve years of age (section 376DB).

Article 21 of the Indian Constitution states that no person shall be deprived of life and personal liberty, except according to procedure established by law. There have been many discussions as to how the imposition of death penalty is a violation of the fundamental right to life, but the five bench judge of the Supreme Court in the case of Bachchan Singh v. State of Punjab held, by a majority of 5:4, that death penalty as an alternative punishment is not unreasonable or violative of Articles 14, 19 or 21 of the Constitution.

Articles 72 and 161 of the Indian Constitution empower the President and the Governors to grant pardon, suspend, remit or commute sentence of any person sentenced to death penalty among other cases. The Supreme Court has observed in the case of Shatrughan Chauhan v. Union of India that power conferred upon the executive under these Articles is not a matter of privilege or grace but an important constitutional duty to be performed in the aid of justice and not in its defiance.

Critical Analysis

Out of all the punishments available, the capital punishment is the most severe and extreme. There has been a practice of imposing capital punishment in almost every country since time immemorial. The irreversible nature of the act makes its imposition limited only to those convicted of the most gruesome, heinous and anti-social crimes. With time however, most of the countries put an end to this practice and became signatories to international conventions to prohibit the same. Currently, 133 countries have abolished death penalty in law or in practice. Even the Indian judiciary has acted in accordance with this international trend. In 1979, the constitutionality of capital punishment was challenged before the Supreme Court in the case of Rajendra Prasad v. State of Uttar Pradesh where the Justice Krishna Iyer held that death sentence is not justified unless it is shown that the criminal was dangerous to the society. He also pleaded for the abolition of death penalty and held that discretion given to the judge to choose between death and life imprisonment was violative of Article 14 which condemns arbitrariness.

However, the Supreme Court overruled Rajendra Prasad’s judgment in the case of Bachchan Singh v. State of Punjab and Machhi Singh v. State of Punjab but these cases limited the imposition of death penalty to the ‘rarest of the rare’ cases and issued guidelines to consider the manner of commission of offence, motive, anti-social behaviour or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. The concerns about discrimination and arbitrariness are still present in the system despite international organizations like Amnesty International and United Nations seeking the abolition of the death penalty through its resolutions. 

A reason for its ban is the possibility of an innocent person being subjected to the strictest punishment of all. The Law Commission’s 2015 Report stated that 28.9% of the cases where the Trial Court had awarded the death sentence resulted in an acquittal by the High or the Supreme Court. One of the arguments made against the abolition of death penalty is the deterrent effect that such a sentence has on members of the society and the belief that it would actually deter others from committing the same offence. However, the reports and statistics suggest otherwise. The report of Royal Commission on Capital Punishment (1953) which was reiterated in the case of Triveniben v. State of Gujrat concluded that there was no conclusive statistical evidence that capital punishment was any more deterrent that other forms of punishments. Even after bringing the POCSO Act and various amendments to it as well as the Criminal Law (Amendment) Act incorporating death penalties for various offences, the number of cases of sexual assault and rape against children have gone up. Experts believe that the larger interest for bringing such laws is to empathise with the public anger. 

Another serious drawback of capital punishments is that since these acts came into force, there have been more and more cases of murder of the victims of sexual assault by the offender in an attempt to escape prosecution and possibly a death penalty. This can be observed by the fact that the number of death sentences imposed in cases of murder including sexual violence jumped 35% from the previous year. Another problem with the imposition of capital punishment is the possibility that the cases of such nature will not get reported. The National Crime Records Bureau, in its 2016 Report indicated that 94.6% of the rape accused were the victim’s relatives, including brother, father, grandfather, sons or acquaintances. In this situation, there is a chance that the victim, or if the victim is a minor then his or her guardians may not report the case to shield the relative accused to protect them from being subjected to death penalty.

Conclusion

Taking a look at the last fifteen years, the number of people sentenced to death, that were actually executed, stand at eight people, including Dhananjay Chatterjee’s hanging in 2004, Md. Ajmal Kasab’s, Md. Afzal Guru’s, Yakub Memon’s hanging in 2012, 2013 and 2015 respectively and the four of the convicts of Nirbhaya gang rape in 2012, who were hung in March 2020. Thus, despite the provisions allowing death penalty in various offences, the Courts of India have acted in accordance with the international trend of minimising the imposition of capital punishment and used the discretion only in the rarest of the rare cases, involving terrorism or gruesome acts of rape and murder. The power vested with the judges has been and should continue to be used very sparingly, in imposing the most severe and strict punishment there is, death.

Author: Ashray Singh, School of law, NMIMS Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India.

Termination of Teachers in Tripura: Legal Angle

Reading time: 8-10 minutes

Rule of law is one of the essential and underlying features of the Indian Constitution. It sets out the structure by which the power of the State is limited and not unfettered. Equality before the law and fairness in the application of the law are the two most important aspects of the rule of law. Article 14 and 16 of our Constitution ensures that the State shall treat all persons equally in matters of employment. Therefore, the selection process in any public institution should be fair and justified.

Appointments at public offices should not be guided by bribery or nepotism. As noted in the case of State of Punjab and Ors. vs. Brijeshwar Singh Chahal and Ors.,  “Appointments made arbitrarily, without any clear selection process or for political reasons, will be subject to judicial review and will be liable to be quashed.”It is in the public interest that the selection and appointment process should be transparent in order to make it foolproof. The present case in which the Apex Court confirmed the termination of 8,882 ad hoc teachers in Tripura is based on similar lines. The Division Bench of Hon’ble Supreme Court, in Ajoy Debbarma and others Versus State of Tripura and others, observed that because their very selection and appointments were found to be unconstitutional and invalid, the candidates concerned could not be given any other advantages.

Facts of the Issue

In 2014, the selection of 10,323 teachers by the state government of Tripura was challenged before the High Court in Tanmoy Nath vs. State of Tripura & others. It was argued that the selection process contained discrepancies.  The Hon’ble High Court concluded that the selections and the relevant policies were illegal and arbitrary, as the appointments were not in accordance with the provisions of the National Council for Teacher Education Act, 1993, and suffered due to favoritism and nepotism.  Consequently, the Apex Court issued directions to the Tripura government that the State should establish a new employment policy within two months. The selections shall be made as soon as possible and no later than 31.12.2014, in accordance with the new policy. The Hon’ble Court also made it clear that no other advantages will be given to the candidates.

 “We would like to make it clear that there can be no preference or reservations dependent on age other than the benefits mentioned by us above. No preference shall be granted to dependent government officials or retired government employees or retrenched employees etc. There can be no linguistic or religious minority reservations, except on an area-wide basis.”

In 2017, the decision of the Tanmoy Nath case was appealed against in the Supreme Court. The Apex Court while rejecting the appeal, modified the orders of High Court and directed the Government of Tripura to complete the fresh selection process by 31 December 2017 or before that.

The time given by the Supreme Court in the directions issued in the 2017 Order has been extended from time to time and the Supreme Court has finally issued instructions on 01.11.2018, extending the service duration of the teachers concerned to the completion of the 2019-2020 academic session.

Consequently, as per the instructions issued by the Supreme Court in 2018 and the direction issued in Tanmoy Nath‘s case, the teachers’ services were terminated after the 2019-20 academic session was over. Some of them have challenged their termination before the High Court of Tripura. The Hon’ble High Court dismissed their petition stating that petitioners seek review of the decision given in Tanmoy Nath‘s case which is not in accordance with the law, more so on the doctrine of merger. This judgment of Hon’ble High Court was challenged in the Supreme court. The Apex Court dismissed this appeal on the basis that the validity and legality of the complete selection process and the appointment of approximately 10,323 teachers were discussed in detail in the Tanmoy Nath case. The Supreme Court further directed that the State is obligated to undertake a selection procedure in which the applicants concerned are eligible participate, with age relaxation. The Court also pointed out that the attempt on the part of the State to offer some alternative employment is not to degrade the teachers, but to offer some consolation even in cases where the candidates do not succeed in selecting the teachers’ positions.

Thus, the above factual scenario led to the passing of the judgment by the Hon’ble Court of termination of 8882 teachers in Tripura with no other advantages to the concerned candidate.

Legal Provisions Involved

The legal provisions involved in the present case are Article 14 and Article 16 of the Constitution of India. Articles 14 and 16 falls within the framework of a constitutional right to equality. Article 14 focuses on the fundamental right to equality and Article 16 provides for the right to equal opportunity in matters relating to public employment. Thus, Article 14 read with Article 16 implies that the selection process in case of public employment should be such that all qualified applicants are given the equal chance of being selected.

Then comes the aspect of the Doctrine of Merger, which states that if the dispute before the superior court has been disposed of in some way i.e. either by affirming the judgment or order or by setting aside or by amending the same, the judgment of the Supreme Court shall be the final, binding and operational decision and the impugned order/judgment shall stand merged into the order passed by the Superior Forum, i.e. the impugned order/judgment retains no identity or enforceability of its own.

Critical Analysis                                              

The termination of teachers who were employed in the school education department has become a central political issue in the State of Tripura. The decision of the Supreme Court indeed seems to be a viable option, considering the law of the land, as the selection process is purely based on an oral interview which is contrary to the National Council for Teacher Education Act, 1993. The nepotism and favoritism in employing government teachers are against the spirit of equality, which is enshrined in Article 14 and Article 16 of the Constitution of India. As in the case Ramana Shetty v. International Airport Authority, the Apex Court had opined that “This Court relies on the observations of E.P. Royappa and Maneka Gandhi have again stated that state action must not be influenced by extraneous or irrelevant considerations, as that would be a denial of equality.” The present decision of the Supreme Court, therefore, confirms with the basic laws of the land. 

It is interesting to note that the Supreme Court affirmed the High Court decision of no other advantages to be given to the concerned candidate apart from age relaxation. This clearly shows the balanced decision of the Supreme Court in the present matter. The Court upheld the superiority of the law of the land, by disallowing any other advantages to candidates and simultaneously upheld the importance of equal opportunity by allowing age relaxation.

Conclusion

As the entire selection process was illegal and invalid, the only reasonable option that the Court could resort to, was to terminate the employment of the concerned candidates. The issue regarding the validity and legality of the entire selection process and the termination of 8882 government teachers was smoothly dealt with by the Hon’ble Court. The age relaxation allowed by the Hon’ble Court for application of post of teacher till 31.03.2023 will certainly provide the opportunity to the eligible and competent candidate to get selected for the post of government teacher in the legal and valid manner. Thus, the judgment handed down by the Hon’ble Court is rational and appreciable.

Author: Palak Jain, Institute of Law, Nirma University.

Editor: Astha Garg, Junior Editor, Lexlife India.

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.

All you need to know about: The Rights of Accused & Victim

Reading time: 8-10 minutes.

The recent killing of Vikas Dubey, who was accused of murdering 8 policemen in an alleged encounter, has garnered the support of people across the country. Extra-judicial killings have become so normalized that they are often depicted in mainstream entertainment, in a glorified manner. This gives rise to the very pertinent question, “why does the popular public sentiment lean towards the lawlessness of the extra-judicial killings?” The answer to this, lies in the inability of the State to balance the rights of the accused and that of the victim.

Right of the Accused

Article 21 of the Indian Constitution states that:

“No person shall be deprived of his life or personal liberty except according to procedures established by law.”

Article 21, therefore, shields everyone within the jurisdiction of India from torture and assault by the State and its agents. It implicitly states that it is only a trial conducted according to the criminal procedure code, with reasoning and evidence at its base, that can punish a person to deprive him of his life or personal liberty. The case of Vikas Dubey is not one of its kind. In the past three years, 6145 operations have been conducted in which 119 accused have died and 2258 have been injured in Uttar Pradesh alone. Such extra-judicial killings are nothing but State-sponsored terrorism.  

In Kartar Singh v. the State of Punjab, the Court held that the procedure established by law must follow the principles of natural justice.  One of the core principles of natural justice is Audi Alteram Partem, which means, to hear the other side. Sir Mathew Hale a distinguished jurist of his time, set out 18 tenets for dispensing of justice. The sixth tenet reads as follows:

“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”

And therefore, extra-judicial killing by their very nature, are violative of principles of natural justice and consequently of Article 21. When the police takes upon itself to deliver swift justice by staging encounters, it contravenes the very fundamentals of the right to life and liberty.

Supreme Court in Prakash Kadam v. Ramprasad Vishwanath opined that the policemen who subscribe to the encounter philosophy are subscribing to a criminal philosophy. The Court termed such extra-judicial killings or encounters, as nothing more than cold-blooded murders. One of the reasons why the police stages fake encounters, as stated in the Manual on Human Rights for Police Officers issued by the NHRC, is that police officials are under tremendous pressure from the political masters to show quick results by methods fair or foul. This is a very hollow and fragile justification. The “superior order” defence also called the Nuremberg defence is a prayer which was used in the Court of law, to grant pardons for the acts committed under the order by a superior. Nazi war criminals who justified their heinous acts by taking the plea of “superior orders” were sent to the gallows. In the similar vein, if a policeman carries out an illegal order of encounter given by his superiors or political masters, then he ought to be charged with murder. And if found guilty, should be sentenced to death, as crimes committed by policemen deserve a higher degree of punishment, as they act wholly contrary to their duties.

Extra-judicial killings are a blatant violation and mockery of human rights, as well as the principles of natural justice, legitimised and facilitated by the State machinery. It leads to what the ancient Indian jurists called Matsya Nyaya or the state of lawlessness. 

Right of the Victim

However, what is even more worrisome than the lawlessness, is the support of the people such staged encounters manage to garner. The police officials involved in the Vikas Dubey encounter were garlanded. Similarly, in December 2019, the Telangana policemen who shot dead four men accused of gangrape and murder in an encounter were showered with petals. This points at a very deep-rooted problem of an extremely slow judicial process, in which people have no faith at all. This lack of faith of the masses in the judicial process, is what gives rise to bloodlust which is satiated only by extra-judicial killings.

In his book Leviathan, Thomas Hobbes speaks of the social contract theory, to say that:

“the obligations of the subject to the sovereign is understood to last as long and no longer than the power lasteth by which he is able to protect them.”

It is very evident that in India, not only the sovereign has failed to protect its subjects, but also the cogs of the judicial system turn so slowly that it denies the victim his right to a speedy trial. Speedy trial has been recognized as requisite to achieve justice for hundreds of years. Clause 40 of Magna Carta reads as under:

“To no one will we sell, to no one will we refuse or delay, right or justice.”

In Hussainara Khatoon v. the State of Bihar, a speedy trial was recognized as a fundamental right. This fundamental right however, is the one which gets violated very often. The sovereign also has a constitutional obligation under Article 38(1), which articulates that the State must secure social justice along with economic and political justice for the welfare of the people. Social justice includes legal justice, and both cannot be separated from each other as they are inextricably linked. The very base of social justice is an expeditious trial, as the society as a whole is concerned with the criminal being punished and the innocent being acquitted. Delay in dispensing justice leads to miscarriage of justice. The Indian justice system operates at such a slow pace that often it becomes the cause of asphyxiation for a fair trial.

Even the 239th Report of the Law Commission of India noted that delays in the investigation and prosecution of criminal cases erode the faith of the masses in the rule of law and the criminal justice system. Long trials can be very detrimental for the case of the victim, as there is a possibility of evidence being lost or forgotten, witnesses being coerced to change their testimony and witnesses being killed all together, which reduces the chances of conviction highly. And therefore truly, justice delayed is justice denied.

Conclusion

What it ultimately boils down to, is the right of the accused to be heard and to have a fair trial versus the right of the victim to a speedy trial. Both the rights emanate from Article 21. State and its functionaries must endeavour to protect the rights of both the accused and the victim. The bloodlust that bubbles up in the common masses is a clear indicator of a judicial system in which the people have no faith. Extra-judicial killings may give a momentary sense of relief to the people, but in reality, it draws our attention away from deep-rooted structural problems.

It is when the judiciary is painstakingly slow; the legislature refuses to amend the inflexible procedural laws; and the executives fail to implement the laws in place to protect the people, that people finally start demanding swift justice even if the means that obtaining such justice subverts the procedure established by law. In a democracy, people have the supreme power and they act as the ultimate check on the State functionaries. When people celebrate extrajudicial killings, it points at their frustration that emanates from a system which has on numerous occasions, failed to dispense justice. And therefore, what is required is a complete overhaul of the rigid and dawdling system, which can dispense justice swiftly, while following the procedure established by law.

Author: Dharmvir Brahmbhatt from Gujarat National Law University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Plea for ‘One Nation, One Education Board’

Reading time: 8-10 minutes.

India has a rich history concerning the education system. It is the birthplace to one of the oldest universities in the world, for instance, the Nalanda University was built in 5th Century BC. Since then, India has come a long way by introducing new pedagogy, syllabus, and education boards to streamline the administration and education provided. Various education boards and statutory bodies are established by the Government of India, to facilitate the working of the education system and provide quality education to every student. There are two major national education boards, the CBSE (Central Board of Secondary Education) & the CISCE (Council for the Indian School Certificate Examination) under which the Indian Certificate of Secondary Education (ICSE) and the Indian School Certificate (ISC) boards come. Apart from this, most states also have independent State Education Boards. Most boards are under the Government’s control, but some are controlled by private and international entities.

Petition, Provisions, & Facts of the Issue

India hasn’t followed a ‘one nation one education board’ formula. States are given liberty to establish education boards by passing Acts in their State Assemblies. Under point 25 of the Concurrent list given in the Seventh Schedule of the Indian Constitution, education comes under the ambit of the State as well as the Union. A number of boards in India have led to non-uniform and varied standards and systems of education, in every part of this country. State Education Boards tend to give education at less cost, though the quality of education compared to that of a national board or international board is often questioned and criticised. The Public Interest Litigation (hereinafter referred to as “PIL”) filed by Ashwini Kumar Upadhyay, a BJP leader and advocate, in the Supreme Court of India, challenged this concept of multiple boards across India.

His Petition has looked into the feasibility of establishing of ‘One Nation, One Education Board.’ The plea sought to merge the two of many existing boards into one, i.e. CBSE & CISCE into one official national board of education. The plea further sought to achieve socio-economic equality and justice. For this objective to mbe met, it is necessary for every school to adopt a similar syllabus and curriculum.It was also stated that entrance exams conducted by the Central Government are based on the syllabus and curriculum of the CBSE board. According to the PIL, a student studying in a State Board school has to face more hardship than the student studying in the CBSE board, because of the education and teaching standards while appearing for entrance exams.

This promotes inequality between standards of education provided to the youth of India. The plea suggested that the official language of teaching may change according to the preference of the States. The main contention of the plea was that the prevailing education system does not provide equal opportunity to students between ages 6 to 14. Even though Article 21A (Right to Education) guarantees education to all children, the standard of education provided by some boards is well below standards of CBSE. The PIL further suggested to the Supreme Court of India, the establishment of a national education council or commission, that can implement the proposed system.

Similar Petitions & Verdicts

This is not the first time a PIL has been filed regarding this issue. In 2017, Neeta Upadhyay, a teacher in primary school and wife of BJP leader Ashwini Kumar Upadhyay, filed a PIL pertaining to this issue. The plea was however, dismissed by the Court by saying merging of education boards is not the court’s job and students will be burdened by addition of more books. This dismissal of the PIL was in stark contrast to another judgement passed by this very court in year 2011. In the judgement of 2011, State of Tamil Nadu and Ors. v. K. Shyam Sunder and Ors., the Supreme Court averred that separate education boards are unequal and violate the doctrine of equality. Coming back to the year 2020, the Apex Court seemed to follow the 2017 verdict, by yet again dismissing the plea and stating that the petition lays no foundation for the Court to issue directions in the favour of the plea.  The Court asked the petitioner to approach appropriate authorities i.e. Government, with this prayer.

Critical Analysis of the Issue.

Positives:

  1. The idea of “One Nation, One Education Board,” strives for making the idea of a Uniform Civil Code come closer to reality. Article 44 (Fundamental Duties) of the Indian Constitution provides that the State should endeavour to establish a Uniform Civil Code which will apply to everyone in India.
  2. A national education board could have made the education system uniform and bearing a standard quality throughout the country.
  3. If this system was implemented, changing schools would not have been a problem, as every school would have followed the same system.
  4. Despite the socio-economic inequalities in the country, everyone would have an equal level of education.  

Negatives:

  1. Education is mentioned in the Concurrent list, which means that both Union and States can establish education institutes and boards. Implementing one national board will mean that the right of State Governments to establish education boards is taken away by the Central Government.
  2. A decent CBSE board affiliated school charges more money than the State board schools. If every school starts following the national board’s syllabus and curriculum then the fees of schools will likely increase. This will lead to students dropping out of schools earlier because of the unavailability of funds.
  3. Taking an example of the Maharashtra State, most of the reputed and established schools and junior colleges follow the SSC and HSC board. The fees are low and faculties are well experienced. Introducing a change in this system will lead to such reputed schools to collapse.
  4. Teaching faculties, writers, and administrators might even have to lose their job or have to adapt to a different system, making their years of experience in the subject and administration worthless.
  5. Currently, parents and students get to choose the education board by enrolling in preferred schools. If the current system is replaced then students cannot choose as per their convenience and abilities, the education board that they can best flourish in.
  6. This might put pressure on students and parents not coming from well off families who cannot afford extra tuition and study materials.     

Conclusion:

The idea of ‘One Nation, One Education board’ seems exciting but it has some drawbacks. The Supreme Court has rejected to entertain the PIL, but the Government may take it into consideration. The current Government has a Uniform Civil Code as one of their agendas might go ahead with the idea. But doing so will cause some real problems for the employed teachers, staff, and students studying in schools. If the government could come up with a concrete plan, then this suggested system of one official national education board can become a success. To achieve that, the Government has to provide subsidiaries, scholarships, and financial aids to students and schools. This will ensure that every child gets access to quality education. across India and no one to be left uneducated or illiterate.

Author: Tejas Kandalgaonkar from MNLU, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: Plea seeking Waiver of Private School Fees

Reading time: 8-10 minutes.

The Covid-19 pandemic has brought the whole world to a standstill. People from all walks of life are facing the brunt of the pandemic. Amidst the pandemic, the education industry was tasked with keeping classes going for its students. With schools shut due to the lockdown, physical teaching became an impossibility. This resulted in online classes being formalised. In the current context, online classes are classes taken by the teachers that students attend from their homes through a computer, laptop, or smartphone. For the smooth conduct of online classes, the student and teacher must have a stable and fast internet connection, a smart device and a basic understanding of how to operate the device and applications. 

While there are apparent advantages of online classes, such as inter-personal interactions between teachers and students while sitting in the comfort of their homes, there are obvious disadvantages too. The virtual schooling systems cannot by any standard of comparison be considered at par with the overall schooling experience. While private schools are trying their best to incorporate curricular, co-curricular and extra-curricular activities within the ambit of this virtual system, several parents are unhappy with the fees that is being charged from them under the pretext of online classes. This was the backdrop that led them to challenge the fee structure before the Hon’ble Supreme Court. In the petition, the Petitioners have expressed disappointment at the Union and State Governments for not putting out proper guidelines for the conduct of the same. However, the Hon’ble Apex Court dismissed the Petition and asked the Petitioners to approach jurisdictional courts in their individual States.

Facts of the Issue

The Petitioners, who are the guardians of the wards studying in different schools of the country, had approached the Hon’ble Supreme Court by invoking its jurisdiction under Article 32, seeking the protection of right to life and right to education guaranteed under Article 21 of the Constitution of the country.

The Petitioners claimed to be aggrieved with essentially two issues: the demand for payment of fees; and the non-payment of which will result in their child’s termination from the school. They alleged harassment by the school authorities to pay fees in advance. They claim that despite the schools not functioning as usual, they are being forced to pay fees for such periods. This Petition was at the time when online classes had not become the usual norm that it is today. No rebate had been offered to the parents, in fact, a fee hike had been opted by some school under the pretext of online classes.

The secondly grievance alleged by the parents was with the variance in orders across the various States in the regulation of online classes. The Petitioners prayed for a uniform set of guidelines for the whole country. Also, they complained that no order or notification has been issued for the students of economically weaker sections (“EWS”), who do not have access to the internet or devices, and are therefore at a naturally disadvantageous position with respect to online classes. Thus, violating their right to education, which is recognised within the ambit of Article 21, and specifically incorporated under Article 21A. They further contended that online classes are taken in an unregulated manner, which causes health problems and also makes kids prone to cyber offences. Lastly, the Petitioners prayed that their wards be not expelled from schools on account of default in payment of fees and to constitute a committee, to regulate the school fee structuring at a pan India level.

Legal Provisions Involved

The prime attention of this debate, and consequent Petition has been focused on Article 21, which guarantees the right to life and Article 21A, which guarantees the right to education for all children between the ages of six and fourteen years. In furtherance of which, The Right of Children To Free And Compulsory Education Act, 2009 (“the Act”) was enacted squarely for the purpose of ensuring that the benefit of education reaches all children, irrespective of socio-economic status. The scope of the Act extends to private schools which receive aids from the Government and it requires such schools to reserve 25% of its seats for students from the economically backward sections. This has made education more accessible, universal as well as democratic. These are the primary legal provisions one finds embroiled in the issue.

The scope of Article 21 is enormous and through judicial review, the scope of Article 21 can be enlarged. It encompasses all those aspects of a man’s life which make it meaningful, complete and worth living. It is within this context that financial constraints act as a thorn. The Petitioners rightly pointed out that the fees demanded from them under normal circumstances covers the additional fees of library, electricity, transport etc. All of these are facilities and amenities that the students are unable to access at the moment, on account of the lockdown restrictions. Hence, the parents claimed that they were being unfairly charged for services that their wards have not utilised. Further, a hike in fees during such times was claimed to be not justified, for obvious reasons. The consequence of the parent’s failure to pay fees, would result in the student being expelled from the school, impeding their education.

Then comes the aspect of doctrine of parens patriae, which means that the State acts as a parent to guard its citizens from any calamity, and look out for their best interest. The Petitioners invoked this doctrine, demanding the State to protect the students from expulsion on account of default in payment of fees.

Critical Analysis

It is a constitutionally guaranteed right of every citizen to approach the Hon’ble Supreme Court in cases of violations of its fundamental rights. In the present case, the case of the Petitioners was that their fundamental rights under Article 21 and 21A were being violated. In such a scenario, the people look up at the Hon’ble Supreme Court to remedy their grievances and provide them with justice. However, the Hon’ble Supreme Court ruled against the Petitioners and instead asked them to approach the respective High Courts of their states, some of which have already allowed school fees to be paid without any reductions. In the Author’s view, the Apex Court ought to have paid more heed to the Petition and the contentions raised therein. Afterall, the reliefs being sought were of equitable nature. 

Conclusion

Financial constraints are the main problem people are facing in these trying times. Waiver of school fees, at least for the facilities not availed by the students during the lockdown should be mandated. Also, it is imperative that parents are given a fair amount of time to pay the fees and are not harassed and threatened with expulsion for the same. Insofar as online classes are concerned, it is advisable that States release comprehensive guidelines so as to regulate their structure and make provisions to afford feasibility of this development to all student, alike. A moratorium similar to the loan moratorium proposed by Reserve Bank of India might be considered in the education industry, for fee payment as well. Such decisions will be in the best interests of the students and the society.

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

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Raghunath Rao Case

Reading time: 8-10 minutes.

The Constitution of India is the supreme law of the country, conferring power to other laws that govern and regulate the legal framework. But through the course of time, some laws may require changes to be made while some may have to be completely eliminated. This was the basic idea behind the Constituent Assembly giving the legislature the power to amend existing laws. However, the amending powers are subject to some limitations and a certain procedure must be followed by the Parliament, i.e. “procedure established by law”.

This procedure is mentioned in Article 368 of the Indian Constitution. Since the Constitution came into force, the Parliament’s amending powers under Article 368 has been subject to many challenges before the Supreme Court. Some of the most notable cases in this regard are Keshvananda Bharti case, Golaknath case and the Minerva Mills case. Raghunathrao Ganpatrao v. Union of India is another such case in which the power of the government to amend the basic structure was challenged by Shri Raghunathrao Raja. The former ruler of the Indian state Kurundwad claimed that the Twenty Sixth Constitution Amendment Act was beyond the amending powers of the parliament and infringed upon the basic structure of the Constitution.

Background

When British India was granted independence in 1947, there were a large number of Princely States. These states had local Maharajas ruling them and they constituted a very significant portion of the subcontinent’s area and population. After independence, they had the freedom to choose a future course of action for their states. Aside from consolidating into one of the newly formed dominions of India and Pakistan, the states could choose to remain sovereign.  Following extensive efforts by VP Menon and Sardar Vallabhbhai Patel, the major fraction of Princely States joined India by signing instruments of accession.

By means of the instruments, the rulers needed to surrender defence, communication and foreign affairs to India. Different Princely States merged to form new ones that were controlled by the Indian government. The maharajas of erstwhile Princely States were provided tax-free sums of money by the Government of India. These sums were called ‘privy purses’ and the amount to be paid depended on various factors like the revenue being generated by the State. The amount was to be paid from the Consolidated Fund of India. After the death of the ruler, the family successor would be entitled to payment of the sum. Since most of the rulers were initially averse to losing their sovereignty, promise of privy purses served as a huge driving force leading to the settlement between them and the Government of India.

Over the course of time, attempts were made by several leaders to reduce or abolish the privy purses. These attempts were met with objection by others. Sardar Vallabhbhai Patel was one such leader who threatened to resign in case the government reneges on its promise. In 1970, a motion was brought in the Parliament for the abolition of privy purses. The same was passed in the Lok Sabha, but failed by one required vote in the Rajya Sabha. Following this defeat, an order was passed by the then President V.V. Giri scraping rulers’ right to privy purses. This order was in consonance with the president’s powers under article 366(22) of the Constitution. Subsequently, a petition was filed before the Supreme Court and the order was struck down in the famous case H. H. Maharajadhiraja Madhav Rao v. Union of India. In 1971, the Indira Gandhi led government brought the 26th Amendment Act, which stripped the rulers of any special recognition and abolished the payment of privy purses. The validity of the same was questioned in the Raghunathrao Case and it was finally held by the Hon’ble Supreme Court that the 26th Amendment Act was valid in its entirety.

Provisions involved

The rulers of former princely states were guaranteed privy purses by adopting Article 291 of the Indian Constitution. Article 362 recognized the personal rights and privileges of the rulers. Further, Article 366(22) defined which persons could be considered rulers and would be entitled to privy purses. The 26th Amendment Act passed in 1971 repealed Articles 291 and 362 from the Constitution and clause 22 of Article 366 was substituted with Article 363-A. By virtue of Article 363-A, the special recognition and privileges enjoyed by the rulers were withdrawn. Additionally, the petitioner also challenged the constituent powers of the Parliament to amend the said provisions. It was claimed on the petitioners’ behalf that the special status of rulers along with the privy purses formed the basic structure of the Constitution. Hence, the 26th Amendment Act was ultra vires and therefore, unconstitutional. Moreover, it was contested that the Amendment Act was violative of Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Indian Constitution.

Critical Analysis

In so much as the case was concerned with the distinctive issue of privy purses and rulers, it also involved the questions as to the subjects constituting the ‘basic structure’ and what is the extent of legislature’s amending powers. The petitioners pointed out that accession of Princely States was a very crucial factor in shaping the post-independence Indian scenario and if it had not been for the rulers’ approval to merge, formation of the Union of India would be out of question. This, it was argued, also made the agreement of privy purses an ‘integral’ part of the Constitution. Further, it was contended that the losses that were suffered by agreeing to merge were far greater than the compensation that was being provided as consideration to the maharajas. The counsel for the petitioner asserted that the impugned Amendment stood as an ‘epitome of immorality’.

The respondents opposed claims of immorality by contending that it was a basic principle fo jurisprudence, that ‘a law could not be interpreted on the basis of moral principles’. However, their main contention was that special rights and privileges were incompatible with a republican and sovereign government, which was also the underlying basis behind the Amendment. Apart from highlighting the difference between ‘integral part of Constitution’ and the ‘basic structure’, it was also asserted that to say that without the rulers’ assent, integration of India wouldn’t be impossible is highly improper. This is due to the fact that there was a popular gust of nationality swarming among the people after independence which played a huge role in the merger agreements.

Conclusion

In its decision, the Supreme Court upheld the validity of the 26th Amendment Act in its entirety. It was also held that the said amendment did not violate Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Constitution. It was stated that immorality should be viewed separately from legislation as they greatly differ from each other. Furthermore, the amendment causes no change to the basic structure of the Constitution. The issue of privy purses that began in 1970s was finally decided in 1993 in the Raghunathrao case. However, it still remains the subject of debates and dialogue among many, even today.

Author:  Anany Raj Singh from Rajiv Gandhi National University of Law.

Editor: Astha Garg, Junior Editor, Lexlife India

NHRC on migrant issue

Reading time: 8-10 minutes.

The National Human Rights Commission (NHRC) has filed an application to the Supreme Court that seeks to intervene in Suo Motu cognizance based on six different reports, in the matter of the plight of the migrant workers who have been stranded in various parts of the country amidst the Covid-19 lockdown. The NHRC’s function is to intervene in any proceeding that involves any allegation of violation of human rights pending before a curt. Through its application, the NHRC re-examines the existing laws governing human rights protection of migrants and suggest short as well as long term measures for effective implementation under these rights.

Short-term measures:

  • Collection of data of migrant workers at the point of departure from one state and on the arrival in the destination state, in order to estimate the in-flow of migrant workers.
  • The Union and State Governments must ensure a strict implementation of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, that provide a journey allowance to the workers.
  • Menstrual hygiene products should be provided to migrant women and adolescent girls across the country.
  • Proper functioning of shelter homes with medical facilities and nutritious food especially for pregnant or lactating mothers, children and the elderly.
  • Each state is directed and identified by the industry the migrant labourers work in, it will aid in the creation of schemes for migrant workers as well as create a nationwide database.
  • Medical facilities and check-ups for migrants before and after the journey, as well as availability of food and medical care during the journey. For migrants who are travelling via bicycles or walking, food and water amenities must be available en route.
  • Originating states should take steps to identify the destitute among the travelling migrants and ensure that they are paid a compensation so that they do not have to resort to begging after their journey.
  • A fund must be created for the payment of ex-gratia relief, that will provide compensation to every migrant returning home.

Long term measures:

  • A special provision must be added to the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 that deals with emergency situations such as the Covid-19 pandemic or other natural disasters.
  • Appointment of a claim commissioner to keep check on the recovery of labourers who abandoned their jobs despite notification for continuity of wages by the Central Government.
  • An allocation of funds must be given to states to create employment opportunities in gram panchayats.
  • A national portal for the registration of migrants to maintain a database.
  • Compensation to the families of those migrants who died travelling migrating to their respective states.
  • A universal ration card must be granted to all migrants.
  • Implementation of the provisions of the Unorganised Workers’ Social Security Act, 2008 that extends maximum benefits to migrant labourers.
  • Creation of a nodal agency under the Ministry of Labour that seeks to resolve inter-state migration disputes.

Background of the issue

Migrants labourers are seldom provided with adequate monetary payment for the hardwork they endure. The pandemic induced lockdown has worsened the plight of the migrants. The Indian Express reported that about 20 workers who were walking from Jalna to Bhusawal stopped for a rest and fell asleep on the railway tracks when, a goods train ran over them.

HW News reported that a pregnant woman, who was walking on foot from Maharashtra to Madhya Pradesh, had to deliver her baby on road. The clothes and essentials were provided by a family from Dhule, Maharashtra. She resumed walking merely two hours later.

The Indian Express and the Millennium Post published a picture of a little boy who had fallen asleep on a suitcase being pulled by his mother, a migrant worker, who had started her journey from Punjab to reach home in Jhansi. The apathy of the states can be seen in their negligence to ensure measures for the safety of migrant workers.

Significance of recent developments

The increase in awareness of the plight of the migrant workers has brought about significant improvements. The Youth for Social Development, an NGO, provided women and adolescent migrant workers who were walking on the NH16 with menstrual hygiene products along with food and other relief material.

The State of Odisha has set up a toll-free Shramik (labour force) Sahayata Helpline, Migrant Labour Desk, as well as seasonal hostels for the children of migrant workers. The State has also taken measures to strengthen Anti-Human Trafficking Units.

It is a matter of concern that as many of 40% of Shramik trains are late, with an average delay of 8 hours. The Vande Bharat Mission is dedicated to help migrants reach their source destination.

The Government has announced its initiative to launch affordable rental housing for migrant workers and the urban poor by converting government- funded housing in cities into Affordable Rental Housing Complexes (ARHC). This would be carried through PPP mode.

Further, in the matter of National Campaign for Central Legislation on Construction Labour v Union of India & Others, 2018, it was reported that the Ministry of Labour and Employment has proposed the issuance of a Universal Access Number for construction workers. The registration process will be simple to ensure that it is well within the understanding capability of the average migrant worker.

Critical analysis

The instance of the death of migrant workers who were run over by a train, has taken as a tragic accident. Whereas, the truth of the matter is that the provisions regarding accommodation, as provided under the Building and Other Construction Workers (Regulation and Employment and Conditions of Service) Act, 1996 have been severe ignored, and this has resorted to a helpless situation for the tired migrant who has to resort to the railway tracks for shelter.

This instance also brings into notice that the migrant workers had additional expenses: they travel a long distance in order to get to the place of work and then need to travel back home. The amount of payment they receive from long hours of work is usually minimum wage that they need to support their families with. This wage is not enough for a travel fare and therefore, they resort to walking from one state to another. Most of the workers are not educated enough to realise that they are victims to numerous human rights violations. It is upon the government they have entrusted their trust upon. Any form of negligence from the government authorities is simply unacceptable.

Conclusion

Every human has the right to basic amenities: food, clothing and shelter. Migrant labourers should not be charged for train or bus expenses. Their railway fare should be shared by the states. No labourer should be concerned about food and water, that must be provided to them free of cost. In the times of crisis, it is difficult to hope for a utopian society, however, we must look after those who cannot: in India, thousands of hardworking workers are deprived of their basic amenities. If the country truly aims for an industrial boom, it must also take measures to keep its workers healthy and safe.

Author: Anjali Roy from Alliance University, Bengaluru.

Editor: Silky Mittal, Junior Editor, Lexlife India.