ISSN: 2456-8325 - iclrq.iniclrq.in › editions › Ed-09.pdf · ISSN: 2456-8325 Sameer Avasarala Founding Editor Anubhuti Maithani Publishing Editor Savyasachi Rawat Editor-in-Chief

EDITION IX March 2020

9 ICLRQ (1) 2020

ISSN: 2456-8325

Sameer Avasarala

Founding Editor

Anubhuti Maithani

Publishing Editor

Savyasachi Rawat

Editor-in-Chief

Shreetama Ghosh

Deputy Editor-in-Chief

Indian Constitutional Law Review

Edition IX

March 2020

Cite as: 9 ICLRQ (1) 2020

ISSN No. 2456-8325

Published By

The Publishing Unit

TABLE OF CONTENTS

EDITORIAL BOARD ......................................................................................... 1

HONORARY ADVISORS & PATRONS ............................................................. 2

EDITORIAL NOTE ............................................................................................ 4

ARTICLES

PROSPECTIVE OVERRULING AND ITS APPLICATION IN INDIA: A

CRITIQUE by Saarthak Jain ............................................................................ 6

THE NEXUS BETWEEN AUTONOMY AND RELIGIOUS IDENTITY OF

PARSI WOMEN by Priya Agrawal ................................................................. 22

THE CONSTITUTIONALITY OF A BEEF BAN by Himanshu Mishra ........ 39

COURT’S JURISDICTION TO ENQUIRE INTO PROCEEDINGS OF THE

PARLIAMENT: A COMPARATIVE ANALYSIS by Akshita Mittal ............... 56

EVOLUTION OF THE PRESIDENT’S DISCRETIONARY POWERS AND

HIS ROLE OF A NOMINAL HEAD by Varisha Sharma ............................... 73

CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE

HUNDRED AND THIRD AMENDMENT) ACT, 2019 by Abhishek Bhatt &

Tarun Sharma ................................................................................................. 84

VIABILITY OF RESERVATION FOR ECONOMICALLY WEAKER

CLASSES by Priyanka Singh ........................................................................ 104

ANTI-TRAFFICKING BILL: A SIREN’S SONG by Aarvi Singh & Swantika

Kumar Rajvanshi ........................................................................................... 121

THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION: A

COMPARATIVE ANALYSIS OF THE INDIAN LAWS AND THE U.S. FIRST

AMENDMENT by Aditi Singhal ................................................................... 137

SUPREME COURT’S JURISPRUDENCE ON THE WEDNESBURY

PRINCIPLE by Krithika Srinivasan & Aarti Krishnan ............................... 158

A NOTE OF THANKS ................................................................................... 174

INDIAN CONSTITUTIONAL LAW REVIEW

EDITION IX Page | 1

EDITORIAL BOARD

FOUNDING TEAM

SHASHANK KANOONGO

CO-FOUNDING EDITOR SAMEER AVASARALA

FOUNDING EDITOR SAMIYA ZEHRA

CO-FOUNDING EDITOR

CORE TEAM

ANUBHUTI MAITHANI HIMANI SINGH

PUBLISHING EDITOR DEPUTY PUBLISHING EDITOR

SAVYASACHI RAWAT

EDITOR-IN-CHIEF

SHREETAMA GHOSH

DEPUTY EDITOR-IN-CHIEF

SENIOR ASSOCIATE EDITORS

ARPITA NANDI

PROMITA SINHA

ANSHUL DALMIA

SENIOR RESEARCH EDITORS

DEVANSH SARASWAT

ANNAPURNA SINHARAY

ASSOCIATE EDITORS

ANISHA SINGH

NAINA NERLI

TANYA ARORA

MOHAMMAD ANAS KHAN

EDITORS

APARAJITA JHA

SHIPRA SAYAL

ABHISHREE MANIKANTAN


EDITION IX Page | 2

HONORARY ADVISORS & PATRONS

• Remembering Hon’ble Justice (Dr) A. S. Anand, 29th Chief Justice

of India and Former Chairman, NHRC

• Hon’ble Justice Arjan Kumar Sikri, Former Judge, Supreme Court

of India

• Hon’ble Justice K. S. Panicker Radhakrishnan, Former Judge,

Supreme Court of India

• Hon’ble Justice Prakash Prabhakar Naolekar, Former Judge,

Supreme Court of India, Former Lokayukta, Madhya Pradesh

• Hon’ble Justice Peter Mohan Peiris, 43rd Chief Justice of the

Republic of Sri Lanka

• Hon’ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal

Democratic Republic of Nepal

• Mr. Arvind Datar, Senior Advocate

• Ms. Geeta Luthra, Senior Advocate

• Dr. Adish C Aggarwala, Senior Advocate and President,

International Council of Jurists

• Adv. Maneka Guruswamy, Senior Advocate

• Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi

• Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of

Harayana

• Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad

• Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru

• Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School,

Pune

• Prof. (Dr.) A. Lakshminath, Vice-Chancellor, CNLU Patna

• Prof. (Dr.) Sukh Pal Singh, Vice-Chancellor, HNLU Raipur

• Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala

• Prof. (Dr.) Rose Varghese, Vice-Chancellor, NUALS Kochi

• Karuna Nundy, Advocate

• Prof. S. Sivakumar, Member, Law Commission of India

• Prof. Michael Keating, Director, Center for Constitutional Change,

University of Aberdeen


EDITION IX Page | 3

• Prof. Sujit Choudhry, Professor, Berkeley Law

• Prof. Richard Albert, Professor, University of Texas

• Prof. Andrew James Harding, Professor of Law, National

University of Singapore

• Prof. Madabhushi Sridharacharyulu, Former Central Information

Commissioner

ESTEEMED MEMBERS

• Dr. Satish Gowda, Senior Professor of Law, P.G. Department of

Law, Bangalore University, Bengaluru, Honorary Member,

Advisory Council

• Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School,

Pune

• Mr. Mohd Imran, Asst Prof., School of Law & Constitutional

Studies, Shobit University, Meerut

• Manjeet Kumar Sahu, Advocate, High Court of Jharkhand

• Ms. Navtika Singh, Assistant Professor, ICFAI University,

Dehradun

• S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal

Advocates, Bengaluru, Honorary Member, Advisory Council

• Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur

• Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law,

Galgotia University, Founder, Knowledge Steez


EDITION IX Page | 4

EDITORIAL NOTE

It is with immense pleasure that the Editorial Board releases the 9th

(ninth) edition of Indian Constitutional Law Review. In the midst of

incredibly wide-ranging changes in the field of constitutional law, this

law review itself has undergone some massive changes – not least in

terms of its design.

In this edition, the featured papers discuss issues of incredible

importance and all of them offer a fresh perspective on constitutional

quagmires. This edition consists of various contemporary as well as

conventional constitutional topics. Ranging from an exposition on

prospective overruling in India, to analyses of the constitutional validity

of some of the biggest changes brought about in the current

dispensation, this edition is packed with incisive commentary and deep

legal research.

Several of the papers also discuss the executive and the judiciary, and

their overlap – this discussion is particularly relevant in the age of an

‘executive’ judiciary and in view of the continuously blurring lines

between the government and the judges. As we delve into figureheads,

and the erosion of active members of the government, it is fitting that

one of the papers provides an analysis of the unique role of the President

of India.

With respect to discourse regarding gender justice, the featured authors

have undertaken a thorough study of the Anti-Trafficking Bill and

provided an immensely analytical breakdown of the nexus between

personal freedom and religious constraints with respect to Parsi women.

We hope this edition is able to pique the interest of those already

interested in constitutional law, as well as draw the attention of those

who are yet to experience this fascinating field; in raising such interest,

we wish that this edition allows our readers to learn something new,

enables discourse, and brings about awareness and academic

interaction regarding these topics.

In the upcoming editions, we hope to engage with the Citizenship

Amendment Act, the abrogation of Article 370, the use of the Unlawful

Activities Prevention Act, among other topics of contemporary import.


EDITION IX Page | 5

We look forward to your feedback and submissions.

Happy reading!

Savyasachi Rawat Shreetama Ghosh

Editor-in-Chief Deputy Editor-in-Chief


EDITION IX Page | 6

PROSPECTIVE OVERRULING AND ITS APPLICATION IN

INDIA: A CRITIQUE

Saarthak Jain†

ABSTRACT

Traditionally, it has been held that statutory

provisions apply prospectively whereas judicial

pronouncements, which overrule the earlier status

quo, have retrospective effect. However, in the

interest of pragmatism, it was felt that the

retrospective operation of certain rulings would

unduly disrupt the existing structures and

transactions. Under this light, the doctrine of

prospective overruling originated in common law.

Regardless of the judicial theory, it is well-

recognized that prospective overruling can play a

crucial role in making change less disruptive and

burdensome for the courts, the administrators, and

the society at large. However, since this doctrine

has been borrowed from the United States of

America, the Indian courts have failed to analyze

and apply it in a consistent manner.

In this background, this paper attempts to study

the origin and application of the doctrine of

prospective overruling. Through an analysis of the

Indian jurisprudence, it is found that the doctrine

has been erroneously applied by the Indian

judiciary. This paper delves into some of these

issues and attempts to find solutions for the same.

† 3rd year law student at National Law School of India University, Bangalore. The

author may be reached at [email protected].

mailto:[email protected]



EDITION IX Page | 7

I. INTRODUCTION

Common law has the potential to adapt itself and meet the challenges

of the growing times and the changing needs of society. One sterling

example of its creativity is the development of the Doctrine of

Prospective Overruling. This doctrine envisages that a well-established

precedent may be overruled with effect from a future date and not

retrospectively.

Traditionally, a judicial declaration that a law is unconstitutional is

deemed effective prospectively as well as retrospectively. An

unconstitutional law is regarded to have been void from its very

inception. This is in accordance with the Blackstonian view of law that

the duty of the court is “not to pronounce a new rule but to maintain and

expound the old one”.1 The theory is that the law has not changed, only

its true nature has been disclosed. Accordingly, the law as now found by

the Court must apply to the past as well as the future transactions.

However, when a judgment which has held the field for a long period of

time is overruled, it may result in administrative chaos if the new rule

is applied to all the cases which have been decided on the basis of that

old rule. A.R. Blackshield, an eminent legal jurist, has explained the

circumstances wherein the court would be justified in resorting to

prospective rather than retrospective overruling:

In general, it may be said that to warrant prospectivity,

there must be an awareness that the results of normal

retrospectivity would be, not merely inconvenient, but

gravely unjust or would involve an extremely burdensome

sorting out process for courts or administrators. Injustice to

a single litigant will normally not suffice. What is required

is that retrospectivity would disrupt the private lives of

many citizens or would throw a substantial network of

business arrangements or property transactions into doubt

or confusion; or would destroy the validity of elaborate

1 M.P. Jain, INDIAN CONSTITUTIONAL LAW 1727 (6th ed., LexisNexis 2012).


EDITION IX Page | 8

administrative arrangements which had already been

worked out, and which as a practical matter could not

possibly be reopened.2

In this paper, an attempt has been made to trace the origin of this

doctrine in common law. This is followed by a detailed account of its

adoption and application in India. Since this doctrine has been borrowed

from the United States of America, the Indian jurisprudence has failed

to comprehensively analyse the issues and limitations related to

prospective overruling. Such an analysis would enable one to

understand whether the propositions laid down by the Supreme Court,

as a matter of caution, are really necessary.

II. THE ORIGIN OF THE DOCTRINE

Prospective overruling was, for the first time, laid down by the United

States Supreme Court in Great Northern Railway Company v. Sunburst

Oil & Refining Co.3 Sunburst, a shipper, had earlier sued Great

Northern Railway Company for recovering payments claimed to be

overcharges for freight. The Railroad Commission of Montana, upon a

complaint by the shipper, held that the rates so approved were excessive

and unreasonable. The case was decided in the shipper’s favour. Upon

appeal to the Montana High Court, the court overruled the decision, but

limited the change to the cases arising in the future. Great Northern

Railways was offended by the refusal of the court to grant relief to them,

and appealed to the US Supreme Court. They argued that the decision

of the High Court was flawed as it deprived the company of its property

by virtue of an interpretation of the statute law now acknowledged to be

wrong.

2 A.R. Blackshield, “Fundamental Rights” and the Economic Viability of the Indian

Nation: Part Three: Prospective Overruling, 10(2) JOURNAL OF THE INDIAN LAW

INSTITUTE 227 (1968). 3 Great Northern Railway Company v. Sunburst Oil & Refining Co., 287 US 358

(1932).


EDITION IX Page | 9

The Supreme Court rejected this argument in a unanimous decision

written by Justice Cardozo. He observed:

A state in defining the limits of adherence to precedent may

make a choice for itself between the principle of forward

operation and that of relation backward. It may say that

decisions of its highest court, though later overruled, are

law none the less for intermediate transactions. Indeed,

there are cases intimating, too broadly, that it must give

them that effect; but never has doubt been expressed that it

may so treat them if it pleases, whenever injustice or

hardship will thereby be averted.

It is submitted that the Sunburst Doctrine, as it came to be known in

the US, is not the correct approach for the application of prospective

overruling. The litigant of the case, who has spent considerable time and

efforts, is denied relief by the court despite the court’s acknowledgment

of his plea. As a result, prospective plaintiffs have little incentive to

bring an action.4 Except for the relatively rare instances of test cases or

action brought by public authorities, plaintiffs bring actions in their own

interests and not for the sake of clarifications of legal principles.

The Sunburst approach was, however, subsequently reaffirmed by the

US Supreme Court in Chicot County Drainage District v. Baxter State

Bank.5 In fact, until 1965, the US Supreme Court uniformly applied

prospective overruling by not granting relief to the parties in the case

before the Court.6 However, in Linkletter v. Walker,7 the US Supreme

Court, for the first time, broke away from such declarations by granting

relief to the aggrieved party as well. The Court laid down that in

determining whether to give its decision a prospective or retrospective

4 W. FRIEDMAN, LEGAL THEORY 510 (5th ed., Columbia University Press 1967); LORD

LLOYD HAMPSTEAD & M.D.A. FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE

858 (4th ed., Sweet and Maxwell 1979). 5 Chicot County Drainage District v. Baxter State Bank, 308 US 371 (1940). 6 T.E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only:

’Prospective Overruling’ or Sunbursting, 51(3) MARQUETTE LAW REVIEW 256 (1968). 7 Linkletter v. Walker, 381 US 618 (1965).


EDITION IX Page | 10

operation, the courts must weigh the merits and demerits of each case

by looking back at the history of the rule in question, its purpose and

effect, and whether such retrospective operation will accelerate or retard

its operation. Hence, the US Supreme Court modified its original

doctrine of prospective overruling and transformed it into selective

prospectivity. In other words, relief could be granted by a court to the

aggrieved party as it deems fit. This position was reaffirmed in several

subsequent cases.8 Over the last century, the doctrine of prospective

overruling has been applied in civil and criminal matters in the USA,

and has not been limited to strictly constitutional matters.

However, the position of law was starkly different in the United

Kingdom. Until recently, the English view was largely based on the

Blackstonian theory that the court was not to pronounce a new rule, but

to maintain and expound the old one. As explained by Lord Goff of

Chievely in Kleinwort Benson Ltd. v. Lincoln City Council:9

What the judge states to be the law will, generally speaking,

be applicable not only to the case before him but, as part of

common law, to other comparable cases which come before

the Courts, whenever the events which are the subject of

those cases in fact occurred…When the judges state what

the law is, their decisions do, in the sense I have described,

have a retrospective effect. That is, I believe, inevitable.

However, it must be admitted that English judges have flirted with the

idea of prospective overruling after noticing the bizarre consequences

that may arise out of retrospective effect of judgments. In the House of

Lords judgment of Miliangos v. George Frank,10 Lord Diplock suggested

that the doctrine of prospective overruling should be considered an

option under English jurisprudence.

8 A. Chugh, Doctrine of Prospective Overruling: Judicial Innovations in Declaring the

Law, 29(3) INDIAN BAR REVIEW 292 (2002). 9 Kleinwort Benson Ltd. v. Lincoln City Council, [1998] UKHL 38. 10 Miliangos v. George Frank, [1976] AC 443.



It was finally in 2002 that the House of Lords accepted the application

of this doctrine. In the case of Royal Bank of Scotland plc v. Etridge,11

the court had the occasion to consider the prospective overruling of an

earlier case.12 In this case, the House laid down the steps to be taken by

a bank with regard to transactions in the future without disturbing the

earlier practice that was being followed. In 2005, the House of Lords had

another opportunity to consider the application of this doctrine in the

case of National Westminister Bank Plc v. Spectrum Plus Ltd.13 It was

held by the court that if a decision has gravely unfair and disruptive

consequences for past transactions and events, then applying the

doctrine of prospective overruling would not be considered as judicial

overstepping. Moreover, the doctrine has not been confined to

constitutional cases alone.

III. THE INDIAN SCENARIO: GOLAKNATH AND THEREAFTER

The Supreme Court of India’s power to prospectively overrule its earlier

decisions was firmly established by the judgment rendered in L.C.

Golaknath v. State of Punjab.14 In this landmark judgment, the

Supreme Court held that the fundamental rights enshrined in Part III

of the Constitution are not amendable by the Parliament, or more

specifically that a constitutional amendment is a “law” within the

meaning of Article 13, and is, therefore, invalid if it takes away or

abridges any of the fundamental rights. Five out of the eleven judges

took recourse to the doctrine of prospective overruling. While holding

that the Parliament could not amend the fundamental rights, they

declared that this norm would operate only in the future, and not

retrospectively. This meant that none of the amendments made to the

fundamental rights up to the date of the Golaknath decision would be

invalidated. Thus, while all amendments made to the fundamental

11 Royal Bank of Scotland Plc v. Etridge, [2001] UKHL 44. 12 Barclays Bank Plc v. O’ Brien, [1993] UKHL 6. 13 National Westminister Bank Plc v. Spectrum Plus Ltd., [2005] UKHL 41. 14 L.C. Golaknath v. State of Punjab, 1967 SCR (2) 762.



rights till Golaknath were to remain effective, thereafter Parliament

was not to be competent to modify fundamental rights.15

Chief Justice K. Subba Rao undoubtedly took a bold and imaginative

step, challenging the very roots of traditional jurisprudence in India.

Between the commencement of the Constitution on January 26, 1950

and the date of judgment in Golaknath, a number of constitutional

amendments amending the fundamental rights had been enacted and

were treated as valid by the Supreme Court in Shankari Prasad16 and

Sajjan Singh.17 Based on these amendments, several state legislatures

had enacted agrarian reforms revolutionizing the entire agrarian social

structure of India. If the Golaknath ruling were given a retrospective

effect, all this wholesome legislation would fall to the ground. To meet

this extraordinary situation that may be caused by the decision, the

Court felt that it must evolve some doctrine which had “roots in reason

and precedents so that the past may be preserved and the future

protected”.18 Talking about prospective overruling, Justice Subba Rao

observed:

It is a modern doctrine suitable for a fast- moving society.

It does not do away with the doctrine of stare decisis, but

confines it to past transactions. It is really a pragmatic

solution reconciling the two conflicting doctrines, viz that

the court finds law and that it does make law also. It finds

law but restricts its operation to the future. It enables the

Court to bring about a smooth transition by correcting its

errors without disturbing the impact of those errors on the

past transactions.19

Prospective overruling in the Golaknath case was applied very

differently from the way it has been made use of in other common law

15 H.M. Seervai, CONSTITUTIONAL LAW OF INDIA 8.18 (4th ed., NM Tripathi Pvt. Ltd

1991). 16 Shankari Prasad v. Union of India, AIR 1951 SC 455. 17 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. 18 Per Subba Rao J., L.C. Golaknath v. State of Punjab, 1967 SCR (2) 762. 19 Id.



jurisdictions. In most countries, prospective overruling has been applied

to hold the law in question invalid from the date of the decision and not

earlier. However, in Golaknath, the impugned constitutional

amendments were to remain valid forever, even after the Supreme

Court’s decision. The principle of non-amendability of the fundamental

rights was to apply only in the future.20 If the doctrine was applied in

the same way as it is done in other jurisdictions, the amendments ought

to have been held invalid from the date of the judgment. Therefore, the

Supreme Court effectively diluted the doctrine of prospective overruling

in this case.

As the Supreme Court was invoking this doctrine for the first time, it

further laid down three propositions by way of abundant caution,

namely:

a. The doctrine of prospective overruling would be used only in matters

arising under the Constitution;

b. This doctrine can be invoked only by the Supreme Court since it has

the constitutional jurisdiction to declare law which is binding on all

other Courts in India; and

c. The precise version of retrospectivity to be imposed is to be a matter

of the Court’s discretion, “to be moulded in accordance with the justice

of the cause or matter before it”.

After the Golaknath case, the Supreme Court, on numerous occasions,

applied prospective overruling as an expedient remedy. In Waman Rao

v. Union of India,21 a question was raised on the validity of the

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and

the device of prospective overruling was used by the Court. Similarly, in

Atam Prakash v. State of Haryana,22 the question was over the validity

of the Punjab Pre-emption Act, 1913. The Court, while holding that

relevant provisions of the Act were ultra vires the Constitution, ordered

20 Jain, supra note 1, at 1729. 21 Waman Rao v. Union of India, AIR 1981 SC 271. 22 Atam Prakash v. State of Haryana, AIR 1986 SC 859.



that where the decrees had become final, they would remain binding on

the parties and the declaration granted by the Court with regard to the

invalidity of the provisions of the Act would be of no avail to the parties

to such decrees.

In another important case of L. Chandra Kumar v. Union of India,23 the

Supreme Court held that Article 32 and Article 226 of the Constitution

of India are part of the basic structure of the Constitution, and that

clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent

they exclude the jurisdiction of the High Court and the Supreme Court,

are unconstitutional. The judgement was however prospective in nature.

A very significant use of prospective overruling was made in the

landmark Mandal Commission case.24 In this case, the ratio of The

General Manager, Southern Railway v. Rangachari25 was overturned.

Under the Rangachari ruling, a number of people belonging to the

Scheduled Castes and Scheduled Tribes had got reservations in

promotions. In order to bring about a smooth transition in the

promotions of SCs and STs, the Supreme Court held that the Mandal

Commission ruling would come into effect five years after the date of

judgment. This was not only extending the principle of prospective

overruling but even further elongating the same for five more years. In

Ashok Kumar Gupta v. State of Uttar Pradesh,26 the Supreme Court

upheld the constitutional validity of the Mandal Commission ruling.

The Court observed:

The prospective overruling of Rangachari ratio in Mandal

case is constitutional and fulfils the competing equality

between sections of the society.

23 L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186. 24 Indra Sawhney v. Union of India, AIR 1993 SC 477. 25 The General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36. 26 Ashok Kumar Gupta v. State of UP, 1997 (5) SCC 201.



In another ruling, Somaiya Organics v. State of U.P.,27 Justice B.N.

Kirpal held that even a law enacted without legislative competence may

be prospectively overruled and observed:

Nevertheless a law enacted without legislative competence

remains on the statute-book till a court of competent

jurisdiction adjudicates thereon and declares it to be void.

When the Court declares it to be void it is only then that it

can be said that it is non est for all purposes…It is not

possible to accept that such an order of prospective

overruling is contrary to law. An invalid law has not been

held to be valid. All that has happened is that the

declaration of invalidity of the legislation was directed to

take effect from a future date.

A recent instance where the Supreme Court resorted to the application

of this doctrine can be found in Ramesh Kumar Soni v. State of Madhya

Pradesh.28 This case dealt with the Code of Criminal Procedure (Madhya

Pradesh Amendment) Act of 2007, which made certain offences triable

only by the Court of Sessions. A charge sheet was filed before the

Judicial Magistrate, First Class, after the commencement of the

amendment and consequently, the case was committed to the Court of

Sessions. The question before the Supreme Court was whether the view

taken by the Full Bench of the High Court, holding the amended

provision to be inapplicable to pending cases, is correct or not. The SC

held the High Court’s view to be incorrect in principle, but held that the

decision rendered by the High Court would stand overruled only

prospectively. Justifying their reasoning, T.S. Thakur, J. stated:

We say so because the trial of the cases that were sent back

from the Sessions Court to the Court of the Magistrate, First

Class under the orders of the Full Bench may have

concluded or may be at an advanced stage. Any change of

forum at this stage in such cases would cause unnecessary

27 Somaiya Organics v. State of UP, (2001) 5 SCC 519. 28 Ramesh Kumar Soni v. State of Madhya Pradesh, AIR 2013 SC 1896.



and avoidable hardship to the accused in those cases if they

were to be committed to the Sessions for trial in light of the

amendment and the view expressed by us.29

Hence, the doctrine of prospective overruling today seems to have

crystallised and has cemented a place for itself in modern Indian

jurisprudence. However, there are certain aspects of this doctrine which

still need to be clarified by the courts of law. This ambiguity can be

traced back to the Golaknath ruling. There is no dispute over the fact

that the Supreme Court rightly invoked the doctrine of prospective

overruling in the Golaknath case. If it had not done so, it would have

resulted in a constitutional crisis and administrative chaos throughout

the country. However, whether the three propositions restricting the

scope of this doctrine are necessary is a debatable point, which has been

addressed in the next section.

IV. THE NEED FOR REFORM

As mentioned in the previous section, Justice K. Subba Rao laid down

three essential propositions for the application of prospective overruling.

It is submitted that the first two propositions, that the doctrine may be

employed only by the Supreme Court and only where there is a

constitutional matter at issue, are unnecessary and excessively restrict

the scope of the application of this doctrine.

The first proposition limiting the subject matter to constitutional issues

is unjustifiable in the present context. To impose such a subject-wise

limitation seems almost self-defeating, and would hinder a broader

understanding of the functioning of judicial relief when faced with a

decision of wide impact.30 The rationale behind invoking this device is

to render justice, and justice can never be solely limited to constitutional

matters. Article 142 of the Constitution enables the Supreme Court to

29 Per T.S. Thakur J., Ramesh Kumar Soni v. State of Madhya Pradesh, AIR 2013 SC

1896. 30 W.S. Hooker, Prospective Overruling in India: Golaknath and After, 9(4) JOURNAL

OF THE INDIAN LAW INSTITUTE 628 (1967).



do complete justice in all matters and not merely constitutional matters.

There are several areas, apart from constitutional law, wherein a new

judicial interpretation could have a detrimental impact on past events

or transactions. This could be in cases involving transfer of property,

taxation and land acquisition. This proposition is an obstacle to judicial

relief, and should be removed in order to facilitate justice. It is also quite

out of context when one considers the progressive role played by the

Supreme Court in the Mandal Commission case. The observations made

by Justice K. Ramaswamy in the Ashok Kumar Gupta case are

pertinent:

[P]rospective overruling is a method evolved by the courts to

adjust competing rights of parties so as to save transactions

whether statutory or otherwise, that were affected by the

earlier law.

The Supreme Court itself has accepted that the doctrine of prospective

overruling extends to the interpretation of ordinary statutes.31 However,

in no case has the Supreme Court expressly overruled the propositions

of the Golaknath case or stated that Justice Subba Rao was incorrect.

Strictly speaking, since there was an eleven-judge bench in the

Golaknath case, no smaller bench can take a different view with regards

to the applicability of prospective overruling. However, the Supreme

Court has effectively nullified the first proposition in practice without

expressly overruling the same.32

With reference to the second proposition, it is submitted that this is

again very restrictive in nature, for it completely prevents the High

Courts from resorting to the use of this tool in any circumstance

whatsoever. This may result in the decisions of High Courts causing

injustice and undue hardship. In State of Himachal Pradesh v. Nurpur

(P) Bus Operators Union,33 the Himachal Pradesh High Court had

31 Sarwan Kumar v. Madan Lal Aggarwal, AIR 2003 SC 1475; Ganga Ram

Moolchandani v. State of Rajasthan, (2001) 6 SCC 89 32 A.P. Datar, Prospective Overruling: Correct Doctrine, Incorrect Application, (2008)

7 SCC J-41. 33 State of Himachal Pradesh v. Nurpur (P) Bus Operators Union, (1999) 9 SCC 559.



invalidated certain amendments to the Himachal Pradesh Passenger

and Goods Taxation Act, 1955, which would take effect only from the

date of judgment. On appeal to the Supreme Court, it was held that the

High Court could not utilize the doctrine of prospective overruling, and

was obliged to declare the collection of taxes as invalid from the very

beginning.

Such a restriction serves no logical purpose, because if a High Court

abuses the device, the wide supervisory powers of the Supreme Court

would enable it to correct this abuse when the case comes up before it

on appeal.34 The importance of High Courts had been realized by Chief

Justice Ahmadi in L. Chandra Kumar v. Union of India,35 wherein he

observed:

We, therefore, hold that the power of judicial review over

legislative action vested in the High Courts under Article

226 and in this Court under Article 32 of the Constitution

is an integral and essential feature of the Constitution,

constituting part of its basic structure. Ordinarily,

therefore, the power of High Courts and the Supreme Court

to test the constitutional validity of legislations can never be

ousted or excluded.

The importance of the High Courts should, thus, not be undermined,

and innovative judicial techniques such as prospective overruling ought

to be applied by them when they deem fit. Such an approach is desirable

for two major reasons. Firstly, the process of appeal is dilatory, and

waiting for the Supreme Court to invoke the doctrine would only echo

the maxim: “justice delayed is justice denied”. Secondly, there is no

cogent reason why a court which exercises judicial review under Article

226 cannot mould relief in the form of prospective overruling. Indeed,

34 V. Reddy, Prospective Overruling: Need for a Relook, 10(1) STUDENT BAR REVIEW 93

(1998). 35 L. Chandra Kumar v. Union of India, 1997 (2) SCR 1186.



the powers of the High Court are wider, as the challenge under Article

226 need not be confined to fundamental rights only.36

It is, however, commendable that the judiciary is willing to change its

stance for the better. In the case of Raymond Ltd. v. State of Madhya

Pradesh,37 the Division Bench of the Madhya Pradesh High Court

invoked the doctrine of prospective overruling. The aforementioned case

dealt with a writ petition filed against the judgment of the MP High

Court in Gwalior Steels Pvt. Ltd. v. MP Electricity Board,38 wherein it

was held that a consumer is obligated to pay 40% load factor of the

contract demand every month as the minimum charge, irrespective of

whether the MP Electricity Board, taking this to be law, framed this

clause in their agreement with the petitioners. In Gwalior Steels, the

Court found no merit in the petitioner’s case claiming a reduction of

electricity charges below the monthly minimum charges, and dismissed

the petition. This decision was reversed in Raymond Ltd., wherein the

Division Bench of the MP High Court held that whenever the contracted

supply fell short of 40% of the contract load, the Electricity Board shall

be entitled to charge only for the reduced energy actually supplied and

not any higher. However, this was held to be applicable only

prospectively.

The matter went on appeal to the Supreme Court. Without explicitly

stating as to whether the High Court had the power to prospectively

overrule or not, the Supreme Court held that since this power was

anyway vested in itself, the law declared would have only future

application, as a contrary view would have serious and adverse impact

on the Electricity Board. Justice D. Raju, while disposing the appeal

observed: “The peculiar facts and circumstances of these cases and the

interests of justice, in our view, necessitate the application of the law

declared therein only prospectively.” The Supreme Court again avoided

36 Chugh, supra note 8, at 298-299. 37 Raymond Ltd. v. MP Electricity Board, (2001) 1 SCC 534. 38 Gwalior Steels Pvt. Ltd. v. MP Electricity Board, AIR 1993 MP 118.



the issue of a High Court’s competence to make use of this doctrine in

the 2014 case of K. Madhava Reddy v. State of Andhra Pradesh.39

Furthermore, the Indian judiciary has unfortunately misunderstood the

doctrine of prospective overruling by conflating it with prospective effect

given to decisions. This doctrine, as the name itself makes it clear,

applies in the case of the overruling of an earlier judgment. Thus, there

is a conceptual distinction between prospective overruling and giving

prospective effect to decisions. Giving prospective effect to judicial

pronouncements is an inherent power of the courts and might not

necessarily involve an overruling of an earlier decision. On several

occasions, the Supreme Court has failed to draw this crucial distinction

between the two and has gone ahead by treating prospective overruling

as synonymous with prospective declaration of the law.

State of Himachal Pradesh v. Nurpur (B) Bus Operators Union40 is a

stark example of the Court’s lack of clarity on this aspect. As discussed

earlier, HP High Court had nullified certain statutory amendments

prospectively, and the validity of this decision was challenged before the

Supreme Court. The Supreme Court held that the High Court could not

utilize the doctrine of prospective overruling. By doing so, it clearly

failed to note that this was not a case of prospective overruling, but a

case where the High Court gave prospective effect to its decision.

Moreover, the Supreme Court gave no reason whatsoever as to why a

High Court could not give prospective effect to its judgements, and made

no attempt to conceptually analyse the doctrine of prospective

overruling. It is submitted that the High Courts have the inherent power

under Article 226 of the Constitution to give prospective effect to their

judgments, if it is necessary in the given circumstances.

39 K. Madhava Reddy v. State of Andhra Pradesh, AIR 2014 SC 2314. 40 State of Himachal Pradesh v. Nurpur (P) Bus Operators Union, (1999) 9 SCC 559.



V. CONCLUSION

The doctrine of prospective overruling can be seen as a tool of general

application, which enables a court of law to meet the ends of justice. It

is one of the many judicial innovations that have been evolved over the

years. One can very well imagine the serious ramifications that would

have arisen had Justice Subba Rao in the Golaknath case held the

constitutional amendments to be invalid. In such a scenario, all the land

reform legislations enacted by various states would have fallen to the

ground, resulting in a chaotic situation throughout the country. Thus,

the invocation of the doctrine is justified in certain situations. Moreover,

considering that the judges in India have an inherent power of judicial

review, asking them to adhere to the traditional Blackstonian principles

would amount to notoriously cutting into their power.

Keeping in mind the purpose that this device serves, it is submitted that

the propositions laid down by the Golaknath case are more self-defeating

than directory, and need to be reconsidered in order to allow the use of

this device by High Courts and in cases pertaining to non-constitutional

matters as well. Furthermore, the principle of prospective overruling

should be considered to have been applied only where an earlier

judgment is overruled. This would enable the ends of justice to be served

more effectively by the Courts.

Whatever analysis we may provide for prospective overruling, in terms

of judicial philosophy, it is clear that the use of this device makes change

less disruptive, thereby making an appellate court less apprehensive of

introducing a change when it considers a new rule to be more sound than

the previous one. However, the judiciary should be cautious and must

use this sparingly, as careless usage could lead to grave injustice being

caused.



THE NEXUS BETWEEN AUTONOMY AND RELIGIOUS

IDENTITY OF PARSI WOMEN

Priya Agrawal†

ABSTRACT

Every individual has the right to autonomy by virtue

of the personal liberty guaranteed by Indian

Constitution. This right to autonomy includes non-

interference with one’s own concept of existence and

one’s own self. Autonomy is an important tool for

carving and preserving one’s identity. However, in

the Indian patriarchal society, women are not

autonomous, and therefore, their identity is bound to

others’ recognition. A woman’s autonomy remains

hostage to community norms.

A Parsi woman marrying outside her community

may want to exercise her autonomy to remain in the

Parsi community in conflict with what how the Parsi

society identifies. This creates discord between the

individual and the community. Can she, after

exercising her right to autonomy, choose not to

secede from all the rights guaranteed to her by

Zoroastrian religion? Can she create an identity

independent of societal rules or would marriage,

which is considered to be a sacred institution, be

allowed to rob her of her identity?

This paper aims at answering these questions, which

gained prominence after a Parsi woman, Goolrokh

Gupta, married a non-Parsi and filed a Special Leave

Petition in the Supreme Court for performing the

Zoroastrian rites. This case, thereby, projects a

nexus between the autonomy and the religious

identity of Parsi women, tested on a constitutional

touchstone. The hallmark of democracy and free

† 3rd year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law,

Punjab. The author may be reached at [email protected].





society necessitates Parsi women to define their own

identity in the midst of a conflict between the

community’s culture and the choices of the individual

women.

I. INTRODUCTION

Women have perpetually been deprived of their rights. It is always

society that comes into the picture to impose rules, whether justified or

unjustified, by offering some remote justification. The explanation is

more or less inclined towards divinity. However, the Indian Constitution

provides various provisions for the equal rights of women. The Supreme

Court has always tested the justifications on the touchstone of

constitutional morality, and protected the rights of women, and the

same is evident from the recent judgement of Indian Young Lawyers

Association v. State of Kerala.1

In ancient times, women were never allowed to identify and define

themselves. But in the recent past, with women empowerment, they

have started identifying themselves as individuals by coming out of the

shackles of society’s definitions. But due to the long-established practice

of robbing their identities, one has to go to Supreme Court in order to

legally recognize one’s right of self.

Parsi women marrying outside their religion lose their religious

identity, meaning thereby that their identity and rights are in conflict

with the religious and community norms, ignoring their autonomy. They

either can exercise their right to interfaith marriage or their right to

freedom of religion. A Parsi woman marrying outside her community

may want to exercise her autonomy to remain in the Parsi community,

in conflict with what society identifies. She may want to choose not to

secede from all the rights guaranteed by Zoroastrian religion, creating

an identity independent of the societal rules. This autonomy is

demanded by a Parsi woman, Goolrokh Gupta, who married a non-Parsi,

1 Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.



thereby projecting a nexus between the autonomy and the religious

identity of Parsi women.

The paper consists of 5 sections. Firstly, it discusses the autonomy and

religious identity that is guaranteed to every person projecting the node

between two. As the paper sees the nexus of religious identity of Parsi

women, the second section describes the status quo of right of autonomy

and religious identity of Parsi’s women. Thirdly, the paper focusses on

the move initiated by Goolrokh Gupta, demanding a change in the status

quo. Further, a section of the paper tests the autonomy and religious

identity of the Parsi women on the anvil of the Indian Constitution and

constitutional jurisprudence.

II. AUTONOMY AND IDENTITY

Article 21, guaranteeing the right to life and personal liberty,

encompasses a host of rights by way of its extended meaning, as

prescribed by the Hon’ble Supreme Court, which are considered

essential and fundamental to an individual. Autonomy is an essential

and important aspect to live an independent and dignified life.

Autonomy nourishes dignity by allowing each individual to make critical

choices for the exercise of liberty.2 Particularly, the phrase personal

liberty includes within itself the aspects of autonomy, self-determination

and personhood.3 At the heart of liberty is the right to define one's own

concept of existence, of meaning, of the universe, and of the mystery of

human life.4 Liberty presumes an autonomy of self that includes

freedom of thought, belief, expression, and certain intimate conduct.5

The notion of the personal autonomy of every individual marches with

the presumption of liberty enjoyed in a free polity: a presumption which

2 Id. 3 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. 4 Planned Parenthood v. Casey, 505 U.S. 833 (1992). 5 Lawrence v. Texas, 539 U.S. 558 (2003).



consists in the principle that every interference with the freedom of the

individual stands in need of objective justification.6

Autonomy must mean far more than the right to occupy an envelope of

space in which a socially detached individual can act freely from

interference, and what is crucial is the nature of the activity, not its

site.7 Autonomy provides choice to an individual with regards to one’s

own self in every facet. Autonomy is a process; being autonomous gives

human life value by allowing us to act on our own choices and

motivations.8 Without autonomy, a human cannot live a dignified life.

Human dignity, in modern times, is a value which is not just limited as

a social, philosophical or religious value, but as a constitutional value.

Human dignity, as a constitutional value, is the freedom of choice of

human beings, the autonomy of their will and their human identity.9

Human dignity and human freedom imply that a man should be free to

shape himself and his fate in a way that he deems best fits.10 A sense of

one's own personal identity is crucial to human beings and without a

sense of identity, the self can disintegrate, be lost, obscured and

vulnerable.11 A person is commonly identified by the identity he or she

creates. Identities have been defined as “the fundamental bases upon

which society, independent of the special and unique features of each

individual, orders and arranges its members”.12 Furthermore, identity

is seen as “an individual’s sense of self, group affiliations, structural

6 R. (on the application of Wood) v. Commissioner of Police of the Metropolis, (2009)

EWCA Civ. 414. 7 National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 SCC

OnLine ZACC 15. 8 ROS HAGUE, AUTONOMY AND IDENTITY: THE POLITICS OF WHO WE ARE (Routledge

2011). 9 Aharon Barak, Human Dignity: A Constitutional Value and the Constitutional

Right, 192 PROC. BR. ACAD. 361, 363 (2013). 10 Cossey v. UK, (1990) 13 EHRR 622. 11 ANTHONY ELLIOTT, CONCEPTS OF THE SELF (Cambridge: Polity Press 2001). 12 Morris Rosenberg, The Self-Concept: Social Product and Social Force, in SOCIAL

PSYCHOLOGY: SOCIOLOGICAL PERSPECTIVES 593, 601 (Morris Rosenberg & Ralph H.

Turner eds., 1981).

https://www.routledge.com/products/search?author=Ros%20Hague











positions, and ascribed and achieved statuses”.13 Wendy Cadge and Lynn

Davidman have observed that religious identity “is a matter of both

ascription and achievement, meaning that it is often viewed as a

combination of something that is determined by birth and also the result

of conscious choices made over the course of one’s life”.14

By recognizing our liberty as autonomous persons, the Constitution

recognizes our ability to preserve and shape our identities in our

interactions with others.15 Autonomy is important to identity because it

offers the prospect of taking control of identity and the means for self-

definition.16 Autonomy is just a tool to carve and preserve our identity,

and the relevant question is not: “How do you want to exercise your

autonomy”, but: “How do you define yourself”.17 But sometimes, our

identity is bound to others’ recognition, and remains hostage to

community norms. This view allows for the common conflict between the

individual and the society: while we feel autonomous standing up for

what we feel ourselves to be, society can only understand autonomy as

the preservation of our social identity.18 An individual is, thus, forced to

choose between their self-identity or social identity.

We think of ourselves as the authors of our own lives, but in many

respects, we have little authority over our identities, because our

identities are contingent and malleable, created and documented by

others.19 We have a pen and a blank notebook to write in; however, the

writing is subject to the dictation of society. In the Indian patriarchal

society, a woman’s identity is not just dictated but written by the society

itself. They are always identified in relation to their fathers before

13 Lori Peek, Becoming Muslim: The Development of a Religious Identity, 66 SOC.

RELIGION 215, 216–17 (2005). 14 Wendy Cadge & Lynn Davidman, Ascription, Choice, and the Construction of

Religious Identities in the Contemporary United States, 45 J. SCI. STUD. RELIGION 23,

24 (2006). 15 K S Puttaswamy v. Union of India, 2018 SCC OnLine SC 1642. 16 Hague, supra note 9. 17 JC Correia, Autonomy and Identity, 26 J. MED. ETHICS 141, 141 (2000). 18 Id. 19 Annette R. Appell, Certifying Identity, 42 CAP. U. L. REV. 361, 365 (2014).






marriage, and their husbands after marriage. Even the surname of a

woman gets merged with that of her husband. Thus, women’s

autonomous personae are traditionally challenged and confined within

their families, kin and communities. Questions about women’s

autonomy have been historically to be subsumed within the questions of

religion, community and personal laws, and hardly ever treated as a

matter of individual right or justice.20

III. PARSI’S RELIGIOUS IDENTITY

Parsis in India are the descendants of migrants from Persia, who left

their fatherland in order to escape religious persecution by the Arabs.

Since then, they have lived in India, keeping a separate identity despite

adopting many local customs and practices.21 They continue to follow the

religion of their forefathers, and have erected Agiaries and Dokhmas for

the performance of religious worship. It is the Zoroastrian religion to

which the Parsis have remained faithful, and which has molded the

admittedly high civilization and culture of the Parsis, and made them

conspicuous among the teeming millions of the Indian population.22

According to the concept of purity in Parsi, only Parsis are allowed to

enter the fire temple (Agiaries) and towers of silence (Dakhmas).

Agiaries are the places where the holy fire is kept lit. A woman marrying

outside community is deemed to have denounced her Parsi religion and

is identified by her husband’s religion. As a result, women engaging in

interfaith marriages are not permitted to enter the fire temple and

towers of silence, because as per their faith, among the various symbols,

fire is the symbol of purity. However, a male engaging in interfaith

marriage is allowed to enter the fire temple and towers of silence. The

Bombay High Court asserted that the plaintiff (male), born of Parsi

20 Paula Banerjee, Debates on Women Autonomy in India, MAHANIRBAN CALCUTTA

RESEARCH GROUP, 2005 (Jul. 6, 2018), http://www.mcrg.ac.in/pp4.pdf. 21 Kamala Ganesh, Intra-community Dissent and Dialogue: The Bombay Parsis and

the Zoroastrian Diaspora, 57 SOCIOLOGICAL BULLETIN 315 (2008). 22 J. M. Unvala, Political and Cultural Relations between Iran and India, 28 ANNALS

OF THE BHANDARKAR ORIENTAL RESEARCH INSTITUTE 165 (1947).



parents and marrying non-Parsis, is undoubtedly entitled to enter the

Agiary, and make as much use of it as any other Parsi is entitled to, to

participate in every fund that exists for the benefit of all Zoroastrians,

and as a matter of right, to have his bodies disposed of in a Dokhma.23

The Parsi rule is similar to patrilineality within the Hindu caste system,

which formally enjoins endogamy, but accepts hypergamy, whereby a

male from an upper caste is permitted to marry a woman from a lower

caste, but not the other way around: the well-known dichotomy between

anuloma and pratiloma norms.24

It implies that a woman is autonomous to marry a Parsi or a non-Parsi.

However, her identity is merged with the identity of her husband in case

she marries a non-Parsi. She is not autonomous to choose her identity if

she marries a non-Parsi. A woman’s identity is defined by the orthodox

Parsi norms. These norms closely supervise and control marriages,

especially of women, and act as gateways to the system. Women have to

remain within the gateways in order to define their religious identity as

per their own choice.

A judgment by judges Dinshaw Davar and Frank Beaman25 stated that

a Parsi can only be so termed if he or she is born of a Parsi father. Then

why does the identity of a woman born of Parsi parents cease to remain

Parsi after an interfaith marriage? There exists no legal justification for

the same. Jehangir Patel, editor of community magazine, “Parsiana”

says, “It’s been over 100 years now. Unfortunately, no woman has taken

up the issue in a big way.” However, Goolrokh Gupta took up the issue

and made a move against this orthodox mindset.

IV. MOVE AGAINST THE STATUS QUO OF RELIGIOUS

IDENTITY

23 Dinsha Manekji Petit v. Jamsetji Jijibhai, (1909) 11 Bom LR 85. 24 Ganesh, supra note 22. 25 Dinsha Manekji Petit v. Jamsetji Jijibhai, (1909) 11 Bom LR 85.



Goolrokh Gupta, from Valsad, Gujarat, was born in the Parsi

community, and later engaged in interfaith marriage. She had seen her

Parsi friend being denied attendance to her parent’s funeral rites. She,

therefore, wrote to Valsad Anjuman insisting to enter the Doongerwadi

(place where funeral rites took place) when her parents would die. The

response was negative. Therefore, she petitioned before the Gujarat

High Court seeking the issuance of a writ against the trust so as to allow

her and any other Parsi Zoroastrian woman married to a non-Parsi to

enter and worship at the fire temple and perform funeral ceremonies at

the tower of silence.26 However, the Gujarat High Court ruled against

her. Therefore, the matter was taken up to Supreme Court, and the case

will come up for final hearing in the month of August. Amidst hearings,

the parties have agreed and declared that the respondents will, on

compassionate grounds, permit the petitioner to attend the funeral

prayers (Paidust ceremony) of her parents performed inside the Prayer

Hall of the Bungli (bungalow) of the Tower of Silence Complex

(Doongerwadi) at Valsad, through a filed memorandum.27

The High Court, while ruling, stated that the personality of a woman,

including her identity, gets merged with the identity of her husband.

The High Court had relied on common law for this doctrine. However,

common law has itself abandoned this doctrine. The ruling that a

woman marrying under the Special Marriage Act automatically

undertakes the religion of her husband seems unfair. The Supreme

Court observed as under:

The purpose of the Act of 1954 is for the parties to the

marriage to retain their individual religious identity post

marriage. If either party had to convert to the religion of the

other, then they would have solemnized the marriage under

the Hindu Marriage Act of 1956. Unless the wife expressly

denounces her religion and converts to the religion of her

husband, logically there is a presumption that she is

26 Goolrokh M. Gupta v. Burjor Pardiwala, 2012 SCC OnLine Guj 2058. 27 Goolrokh M. Gupta v. Burjor Pardiwala, 2017 SCC OnLine SC 1275.



continuing to practice her own religion. Prima facie there is

no case for accepting the application of the doctrine of

merger.28

V. ON THE ANVIL OF THE CONSTITUTION

Autonomy is an integral part of right to personal liberty. The norms of

a particular community seem to reduce such autonomy, especially for

women. Autonomy could be coloured, because sometimes, people have to

make decisions under fairly intense pressure to do and think as most

other people are doing and thinking, especially within a community.29

Individual decision may be influenced by friends, community, etc. Prima

facie, the decision of an individual appears autonomous, but viewing it

from a broad framework will bring to notice its actual colour and

reasoning.

Humans, being social beings, have to live in a society and follow societal

norms, which are mostly based on the community they belong to. At

times, the community norms reflect inadequate respect for autonomy

and thereby, individual liberty. The magnitude of interference with

autonomy increases when these community norms are prima facie

discriminatory on the basis of gender. This kind of discrimination

because of the community norms could undermine autonomy by

attacking the self-respect of those discriminated against.30 Therefore, it

shows inadequate concern for the welfare and identity of the one

discriminated against, leaving them with inadequate resources for an

autonomous life.31

28 Id. 29 Farrah Ahmed, Personal Autonomy and the Option of Religious Law, 24 INT J LAW

POLICY FAMILY 222 (2010). 30 J Gardner, Discrimination as Injustice, 16 OXFORD J. LEGAL STUD. 353 (1996). 31 Hasan, Two recent reports Voice of the Voiceless and Muslim Women Speak detail

innumerable instances of distress, which reveal that in most situations personal law

undermines the rights of women, especially poor women caught in the intersection of

class and community 362 (2005).



Women are always subjected to this kind of gender bias. Parsi norms,

not being an exception, are inclined towards the men. It is

discriminatory to the extent that religious identity of the woman is left

completely bereft when they try to exercise their right to choose a life

partner outside their religion, which is fundamental to their autonomy.

Community norms pressurize the woman. Women are able to be

autonomous because of the fundamental rights guaranteed by the

Indian Constitution; however, sometimes, this autonomy is overpowered

by community norms in the disguise of personal laws.

The question of professing, practicing and propagating one’s faith is a

right which human beings had from the very beginning of time and that

has been recognised as an inalienable right of every human being.32 How

then, under a secular Constitution, can Parsi women not be autonomous

on account of their religious identity?

Article 25 gave the autonomy to profess the religion one wishes to. It

thereby implies that one has the autonomy to choose whichever religion

she wants to practice or profess, because religion is a matter of choice.

This autonomous choice will define one’s religious identity. Linking this

fundamental freedom with the liberty of belief, faith and worship

indicates that the religion cannot be dictated.

However, a Parsi woman does not have the autonomy to define her

identity after engaging in an interfaith marriage. Her autonomy to

marry a Parsi or non-Parsi does not allow her to define her identity. Her

identity is defined according to the community norms. It is ironical that

on one hand, the Constitution allows the right to freedom of religion,

and on the other hand, it imposes deemed conversion on Parsi women

after marriage. How can the identity of the Parsi woman guaranteed by

the Constitution be inferior to the identity defined by the community

norms? This constitutional identity permitting autonomy cannot be

allowed to be suppressed by the community norms prescribing a Parsi

women’s religious identity.

32 Constituent Assembly Debates, 6 Dec 1948, Vol. VII.



The Special Marriage Act 1954 seems to be strengthening the freedom

of religion by providing a special form of marriage irrespective of the

faith which either party to the marriage may profess.33 The purpose of

the Special Marriage Act, which allows the interfaith marriages, is to

retain the religious identities of the persons engaging in interfaith

marriages. If the religion will be automatically deemed to be converted

on marrying outside the community, then what is the use of this law?

The Act is in prima facie conflict with the doctrine of merger with the

husband. It implies that the Gujarat High Court neglected the purpose

of the Special Marriage Act and the autonomy that a woman has in order

to define her identity, while giving a decision based on this doctrine of

merger. The Court has interpreted a secular and progressive law in an

archaic and patriarchal way, which is based on the ancient feudal idea

that women are chattel, their identity belonging to either their father or

their husband, but never themselves.34

The doctrine of merger advocated by Gujarat High Court, thereby

surpassing the autonomous right of Parsi women due to community

norms, cannot be acceptable because it infringes their fundamental

rights. It makes Parsi women like chameleons who have to change their

colour after an interfaith marriage. It seems that marriage within the

community becomes a condition precedent for Parsi women to enjoy civic

and political rights, thereby denying them autonomy over their identity.

The doctrine overrules religious freedom by allowing the official

gatekeeper to dictate the religion of the Parsi women. The Supreme

Court, in Shayara Bano v. Union of India,35 affirmed the primacy of

constitutional values over the mandate of such official gatekeepers.

Even the limitation imposed seems arbitrary because this limitation is

not uniform. It seems to be at the discretion of the trust to define the

identity of Parsi women without any religious backing or justification.

33 Section 4 of the Special Marriage Act, 1954; see Statement of Object and Reason. 34 Satya Prasoon and Ashwini Tallur, Rescuing Individual Rights from the Chokehold

of Groups Rights, THE WIRE, Dec. 3, 2017, https://thewire.in/law/constitution-

individual-group-rights-religion. 35 Shayara Bano v. Union of India, (2017) 9 SCC 1.



If there exists a religious backing for deemed conversion and prohibiting

the Parsi women marrying non-Parsi people, then why did the trust

permit the court to decide an interim relief? Why did the trust agree to

allow the Goolrokh Gupta to attend the funeral rites by way of

memorandum? There are places like Delhi, Iran, Chennai, Allahabad,

etc. where women marrying non-Parsi persons are permitted to attend

the Zoroastrian religious rites or ceremonies. Indian Parsis are

advocates of the Iranian culture and that Iranian Zoroastrians are open

in accepting non-Zoroastrian spouses, i.e. if you go to Iran, there is no

discrimination whatsoever. Anyone and everyone is allowed to enter a

fire temple.36 It, thus, implies miscommunication by the Indian religious

denomination.

The reasoning of purity given by the Parsis does not hold valid because

of its failure to answer the sex-based discrimination which is prohibited

by Article 15. Unlike the Parsi women, a Parsi man has the autonomy

to define their identity to practice the religion they want. This

community norm of the Parsis is a clear violation of Article 15.

The Constitution is a living document with enormous dynamism and for

India to become a progressive nation, Dr Ambedkar had felt that the

Constitution should be allowed to live and grow on the bedrock of

constitutional morality. He, while speaking on the same, said:

Constitutional morality is not a natural sentiment. It has to

be cultivated. We must realise that our people have yet to

learn it. Democracy in India is only a top-dressing on an

Indian soil, which is essentially undemocratic.37

Constitutional morality means bowing down before the constitutional

norms and values.

Parsi women’s religious identity is in conflict with the constitutional

value of autonomy guaranteed by liberty. It appears that the rules are

36 Jyoti Shelar, The Conflict Within: Parsis and Gender Rights, THE HINDU, May 25,

2017, https://www.thehindu.com/news/cities/mumbai/the-conflict-within-parsis-and-

gender-rights/article18520582.ece. 37 Constituent Assembly Debates, 1948, Vol. VII.



barbaric and contain no nexus with the autonomy that a woman has to

define her identity. They seems to be classifying women as secondary

parts of the community. It, thus, becomes violative of the rule of law by

acting arbitrarily, because when the caste of a person cannot be changed

after inter-caste marriage, then how can the religion of a woman be

allowed to change after her interfaith marriage?

The traditions and conventions of the Parsis have to grow in order to

ensure adherence to constitutional morality. The democratic values

survive and become successful where the people at large and the persons

in charge of institutions and communities are strictly guided by

constitutional parameters, and reflect in action the primary concern to

maintain institutional integrity and requisite constitutional

restraints.38 Thus, the identity of the Parsi women should be left in their

own hands.

VI. JURISPRUDENTIAL JUSTIFICATION

Traditionally, independence is connoted by the autonomy which reflects

individualism. J S Mill is an ardent supporter of individualism.

According to him, “Over himself, over his own body and mind, the

individual is sovereign.”39 Mill expounds the concept of individual

freedom. The matters involving the most intimate and personal choices

a person may make in a lifetime, and choices central to one’s personal

dignity and autonomy, are all central to the liberty.40 When Parsi

women do not have control over themselves, how could they be a

sovereign entity in respect of their life? Parsi women too should have

sovereignty over their religious identities after they exercise their right

to choose their life partner.

38 SALMAN KHURSHID, TRIPLE TALAQ: EXAMINING FAITH (Oxford University Press

2018). 39 JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS (Oxford University Press

1859). 40 Planned Parenthood v. Casey, 505 U.S. 833 (1992).

https://www.google.co.in/search?tbo=p&tbm=bks&q=inauthor:%22Salman+Khurshid%22&source=gbs_metadata_r&cad=6





Aristotle's argument concerns the question of what it is that makes an

action voluntary, i.e. done of a person's own free will, and in order to

answer this question, he distinguished between actions whose origin

was inside a person, and those whose origin was outside, i.e. which

resulted from external influences or pressure or compulsion.41 But in the

model of autonomy, an autonomous action is seen as its point of origin;

it must have an immaculate conception, as it were, from within the self.42

Parsi women marrying outside community is an action from within; it is

an autonomous action whose origin lies inside. However, the acceptance

of religious identity as non-Zoroastrian comes from outside, thereby

becoming non-autonomous. It is the severity of pressure from the society

that would make an action non-voluntary. Parsi women like Goolrokh

Gupta, who did not accept their identity from outside, keep challenging

such decisions in order to exercise her own free will. They desire

autonomy in a clear and comprehensible manner, by demanding their

religious identity originating from the inside.

Marshall suggests three characteristics which are crucial to perhaps

everyone's identity: “sex, knowledge and understanding of one's origins

and past experiences, and one's religious or other belief system”.43 When

a Parsi woman experiences and practices Zoroastrian religion, then her

identity after marriage cannot automatically be deemed to be changed.

However, her identity is largely created by social forces. It remains

hostage to the community norms. Women are not allowed to take an

independent and autonomous decision with regards to their own

identity. A woman being acquainted with her past experiences and

origins that define her identity has the right to understand and

experience her future identity the way she likes.

41 J Grimshaw, Autonomy and Identity in Feminist Thinking, in FEMINIST

PERSPECTIVES IN PHILOSOPHY (M. Griffiths and M Whitford eds., Macmillan, London

1988). 42 Id. 43 LEIDEN MARSHALL, AUTONOMY, IDENTITY AND INTEGRITY UNDER THE EUROPEAN

CONVENTION ON HUMAN RIGHTS 5 (Martinus Nijhoff Publishers 2009).



Ros Hague, in his book “Autonomy and Identity: The Politics of Who We

Are”, sees autonomy as a process by which we change and develop our

identity. Hague argues that identity is best understood as changing,

multiple and something we need to take control of ourselves and in order

to support this version of identity, there needs to be a concept of

autonomy which emphasizes self-direction to control our identity.44 His

concept of autonomy aims to be feminist in order to give space to women

to develop their identity rather than conforming to social stereotypes. It,

therefore, supports the autonomy of Parsi women to control and create

their identity without meeting the requirements of societal labels.

Women are encouraged to take control of themselves, and support their

identity by way of exercising autonomy rather than remaining parasitic

to the social order in order to project their identity.

VII. CONCLUSION

Discourses on women’s autonomy have always remained subsumed

within other discourses such as those on rights and representations,

because the Indian society, even till the recent past, did not treat women

as autonomous subjects.45 It was only after women successfully led

autonomous movements in different parts of India from the 1980s till

the present times that there emerged a growing realisation that women

are autonomous subjects even when they represent their communities.46

However, Parsi women have still lagged behind. The movement led by

the non-Parsi women demanding their religious identities will help

them to achieve an autonomous status.

The crux of the problem lies in the fact that women are treated as part

of families and communities, and not as individuals.47 Each individual

exists within a particular culture and is immersed in it from birth,

44 Hague, supra note 9. 45 Banerjee, supra note 21. 46 Id. 47 RANABIR SAMADDAR (ED.), THE POLITICS OF AUTONOMY: INDIAN EXPERIENCES (Sage

Publications Inc. 2005).




https://www.google.co.in/search?tbo=p&tbm=bks&q=inauthor:%22Ranabir+Samaddar%22&source=gbs_metadata_r&cad=8





including the immersion in a particular religion or political ideology.48

The choice of religious identity is involuntary for a Parsi woman when

her individual rights are automatically superseded on engaging in an

interfaith marriage. Acceptance of changing the surname as a

community norm after marriage could not be taken as a license for

changing her religious identity as well.

Parsis claim exclusive rights to Zoroastrianism, so making this ethnic

sacrifice may be the only way to save their ancient religion. Some 1,200

years ago, did their forefathers not bravely abandon their millennia-long

Persian identity for a worthier cause?49 Allowing women to exercise

their freedom will encourage the people to profess and practice the

religion from their heart rather than out of compulsion.

A Parsi woman’s identity should not be curtailed by anyone other than

the woman herself. She is not a property that is mortgaged to her

husband after the marriage. She should have the right, therefore, after

exercising her right to autonomy, to choose not to secede all the rights

guaranteed by the Zoroastrian religion, because it is her identity and

she has the absolute right to define the same. Her religious identity

should, apart from birth, result from the conscious choices she makes

during her life. There are numerous constitutional and jurisprudential

arguments in favour of the autonomous religious identity of Parsi

women. If the Supreme Court agrees with the autonomous religious

identity, then how can the community norms curtail or overpower that

supreme authority? Law should take care of the Parsi women’s interests

as they are a fundamental unit of the society. Law should act as a

negotiation between the individual and the community. Along with the

law, the individuals should also concert commitment for the cause. After

all, laying the strong foundation of the Constitution is the duty of every

48 Dinah Shelton, On Identity, 49 GEO. WASH. INT'L L. REV. 1 (2016). 49 Bachi Karkaria, Intermarry and be Damned: 2 Parsi Women Challenge Bias, THE

TIMES OF INDIA, May 21, 2017,

https://timesofindia.indiatimes.com/blogs/erratica/intermarry-and-be-damned-2-

parsi-women-challenge-bias/.

https://blogs.timesofindia.indiatimes.com/author/bachikarkaria/

https://blogs.timesofindia.indiatimes.com/author/bachikarkaria/



citizen of the country and overpowering it will result in the interference

in the operation of the law.

The tradition of local autonomy and individual conscience amongst the

Parsis make it difficult to enforce any autonomous decision by the Parsi

women in relation to their identity, and democratic discussion is

virtually the only way forward, uncertain though its outcome may be.50

Women, in a democracy, should create an identity independent of the

societal norms. It is true that the identity keeps on changing but that

change should not be because of force or pressure; instead, it should be

independent. The hallmark of democracy and free society necessitates

Parsi women to define their own identity in conflict with their culture.

One should always remember the observation made by Justice Kennedy

in Obergefell v. Hodges,51 which emphasized liberty’s protection of

“certain personal choices central to individual dignity and autonomy,

including intimate choices that define personal identity and beliefs.”

Marriage, which is considered to be a sacred institution, should not

become a weapon to rob the identity of women.

50 Ganesh, supra note 22. 51 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).



THE CONSTITUTIONALITY OF A BEEF BAN

Himanshu Mishra†

ABSTRACT

The paper deals with the constitutionality of a ban

on beef and the restriction on the slaughtering of

cattle. Various states have enacted legislation to put

up an absolute ban on slaughtering of certain

animals. The Supreme Court, since the enactment of

the Constitution, in a number of cases, has dealt with

these issues. The Supreme Court, in 2005, upheld a

ban on slaughtering of bull, bullock and cow as

constitutional and a reasonable restriction on the

exercise of the fundamental right to trade and

profession. This paper aims to argue that the beef

ban is unconstitutional and is against the secular

and democratic setup established by our

Constitution.

The paper aims at critically investigating the ways

in which the constitutional courts have addressed

this issue, and has thoroughly analysed various

cases and offered a critique of the approach taken by

them. In the paper, it is argued that courts have

misconstrued the constitutionally guaranteed

fundamental rights and the provisions of the

directive principle of state policy. Imposing a ban on

slaughtering of cattle (including a cow) above a

certain age, especially when they become useless, is

an unreasonable restriction on the fundamental

right of butchers. The ban on beef also has

repercussions relating to religious freedom and

lifestyle of minorities. It also threatens the

constitutional commitment to equal and fair

treatment to all.

† 3rd year law student at National Law University, Delhi. The author might be

reached at [email protected].





I. INTRODUCTION

The issue of cow slaughter and consumption of beef is a very heated and

politicised issue in India. The cow is considered to be sacred and is

revered by the Hindus, who comprise 80% of the Indian population. The

renowned author, D.N. Jha has argued that sacredness of the cow is a

myth to which fundamentalist Hindu organisations have clung.1 Rather,

various verses and several historical segments suggest that practice of

eating beef was an essential part of the religion for some sects amongst

the Hindus. The sacredness of the cow has often served as a tool for

political mobilisation in modern India, especially during the colonial

period, as the practices of cow slaughter and beef eating significantly

intensified with the arrival of the British in the eighteenth century.2

In India, the right-wing government is now hankering after imposing a

ban on beef. Twenty states in India have already prohibited a ban on the

sale and consumption of beef.3 Some authors claim that today’s

legislation for banning beef is more daunting than the previous one

because of stringent punishment, which will be carried out by the

Hindu-pleasing Government under the guise of cow protectionism. In

2015, there were a plethora of anti-beef legislations and a lot of debate

was centered around the amendment of the Maharashtra Animal

Preservation (Amendment) Act. This anti-beef legislation is said to

derive its legitimacy from Article 48 of Indian Constitution. Different

states in India have imposed different restrictions on the slaughtering

of cattle, on the transport of cattle for slaughter, and for the sale,

possession and consumption of beef.

1 DWIJENDRA NARAYAN JHA, THE MYTH OF THE HOLY COW (Navayana Publishing

House 2015). 2 Aurélien Bouayad, Law and Ecological Conflicts: The Case of the Sacred Cow in

India, 12(2) SOCIO-LEGAL REV. 105 (2016). 3 The states where cow slaughter is legal in India, THE INDIAN EXPRESS, Jan. 31,

2019, https://indianexpress.com/article/explained/explained-no-beef-nation/.



1. IN THE CONSTITUENT ASSEMBLY

In the Constituent Assembly, the ban on cow slaughter was one of the

most contentious issues. The proponents of such a ban emphasised the

sentiments of the majority of the population, i.e. the Hindus. They also

argued that cattle are indispensable for an agrarian economy and hence,

they exhorted the incorporation of this ban in the fundamental rights.4

But it would be imprudent to give cattle fundamental rights. So, the

Constituent Assembly decided to put this in the Directive Principle of

State Policy (specifically, Article 48 of the Constitution), which will

guide the state in policymaking, but will remain directly unenforceable

in any court of law.

Article 48 runs as, “state shall organise agriculture and animal

husbandry on modern and scientific lines and shall, in particular, take

steps for preserving and improving the breeds, and prohibiting the

slaughter, of cows and calves and other milch and draught cattle”.

However, both the proponents and the dissenters objected to the position

being made concrete. Therefore, the members who drafted the provision

made the position on the issue of cow slaughter unclear and left it to

future interpretation.

Preservation, Protection and Improvement of Stock was then

incorporated under the State List, thus empowering the states to

separately legislate on the issue.5

II. JUDICIAL ATTITUDE TOWARDS THIS ISSUE

There have been a series of cases which dealt with this issue. The first

significant case came before Supreme Court in the matter of Hanif

Qureshi v State of Bihar,6 where the absolute ban on the slaughter of

cows was held to be valid. However, the Court held the ban on

4 Ministry of Agriculture, Government of India, REPORT OF THE NATIONAL

COMMISSION ON CATTLE (2002). 5 Entry 15 of List II of the Seventh Schedule of the Constitution of India, 1950. 6 Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.



slaughtering of bulls and bullocks above the age of 16 as

unconstitutional. The most landmark case in this matter is the State of

Gujarat v. Mirzapur Moti Kureshi,7 where a seven-judge bench of

Supreme Court, dealing with Bombay Animal Preservation (Gujarat

Amendment) Act, 1994, upheld the ban on the slaughter of bovine

animals (cow, bull and bullocks) and any kind of beef. In the Mirzapur

Kureshi case, the Supreme Court delved deeper into the religious,

cultural, economic and constitutional aspects. The paper will thoroughly

analyse the interpretation of the Supreme Court in this case and will

critique it on the constitutional law points.

The latest case came before Bombay High Court in Shaikh Zahid

Mukhtar v State of Maharashtra,8 where the Court upheld the

impugned amendment of 2015 of Maharashtra Animal Preservation

(Amendment) Act, 1995. The Bombay High Court was bound by

precedent set by the Mirzapur Kureshi case, and in their 90-page long

judgment, they cited the case extensively. But the High Court

scrupulously upheld the right to privacy as an integral aspect of the

right to life and personal liberty, and struck down Section 5-D of the

impugned Act, which criminalized possession of the flesh of any cow,

bull or bullock slaughtered outside the State of Maharashtra.

1. CONSTITUTIONAL MISADVENTURE BY THE SEVEN JUDGE BENCH

The constitutional bench of seven judges in Mirzapur Kureshi

overturned the decision of the Gujarat High Court in a civil appeal. The

Gujarat High Court declared Section 2 of the Bombay Animal

Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of

1994), which introduced certain amendments in Section 5, as

unconstitutional. The High Court held that the impugned Act imposed

an unreasonable restriction on fundamental rights and is, therefore,

unconstitutional. The Supreme Court dealt with these issues:

7 State of Gujarat v. Mirzapur Moti Kureshi, AIR 2006 SC 212. 8 Shaikh Zahid Mukhtar v. State of Maharashtra, 2016 SCC OnLine Bom 2600.



a. Whether an absolute ban restricted the fundamental rights of

butchers guaranteed under Article 19(1)(g)?

b. Whether an absolute ban was in the interest of the general public?

c. Whether Article 48 justifies the action of the state legislature of

imposing a ban on the slaughter of cattle?

They put heavy reliance on the Directive Principles of State Policy

(hereinafter, “DPSPs”), and gave less importance to the fundamental

rights, and it is implicit that they were inclined towards a majoritarian

view and the sentiments of a particular religion. The fundamental rights

of the butchers were, thus, denied on vague grounds.

2. THE SCOPE OF DPSPS AND ITS CLASH WITH FRS

After the enactment of the Constitution, the court had to deal with many

issues where the DPSPs and the fundamental rights were in conflict.

Article 37 explicitly says that provisions contained in Part IV of the

Constitution, i.e. the DPSPs, are not enforceable in a court of law. In

1951, the Supreme Court, in the case of Deep Chand v. State of Uttar

Pradesh,9 held that DPSPs have to run subsidiary to fundamental

rights. But the whole scenario was overturned after the case of His

Holiness Kesavananda Bharati Sripadagalvaru v. Union of India,10

wherein the Court held that the DPSPs have to be kept in mind while

judging the reasonableness of the fundamental rights. Thus, the Court

must try to strike a just balance between the two. Hence, fundamental

rights no longer hold a superior position to DPSPs.

The Supreme Court, in the case of Pathumma v. State of Kerala,11 laid

down the following tests to determine the reasonability of a legislation

which imposes any restriction on a fundamental right –

9 Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. 10 His Holiness Kesavananda Bharati Sripadagalvaru v. Union of India, (1973) 4 SCC

225. 11 Pathumma and Ors. v. State of Kerala and Ors, [1978] 2 SCR 537.



(a) DPSP needs to be considered. (Para 8)

(b) The restrictions must not be arbitrary or of an excessive

nature so as to go beyond the requirements of the interests of

the general public. The legislature must take intelligent care

and deliberation in choosing the course which is dictated by

reason and good article and the social control permitted by the

restrictions under the article. (Para 14)

(c) No abstract or general pattern or fixed principle can be laid

down so as to be of universal application. It will have to vary

from case to case and having regard to the changing

conditions, the values of human life, social philosophy of the

Constitution, prevailing conditions and the surrounding

circumstances all of which must enter into the judicial verdict.

(Para 15)

(d) The Court is to examine the nature and extent, the purport

and content of the right, the nature of the evil sought to be

remedied by the statute, the ratio of harm caused to the citizen

and the benefit conferred on the person or the community for

whose benefit the legislation is passed. (Para 18)

(e) There must be a direct and proximate nexus or a reasonable

connection between the restriction imposed and the object

which is sought to be achieved. (Para 20)

(f) The needs of the prevailing social values must be satisfied

by the restrictions meant to protect social welfare. (Para 22)

(g) The restriction has to be viewed not only from the point of

view of the citizen but the problem before the legislature and

the object which is sought to be achieved by the statute. In other

words, the Court must see whether the social control envisaged

by Article 19(1) is being effectuated by the restrictions imposed

on the fundamental right. However important the right of a

citizen or an individual may be it has to yield to the larger

interests of the country or the community. (Para 24)



In the Mirzapur Kureshi case, unnecessary emphasis was given to the

DPSPs and they were implicitly treated as superior to the fundamental

rights. The absolute prohibition on slaughtering was wrongly held to be

in public interest. As was rightly held in the case of Mohd. Faruk v. State

of Madhya Pradesh,12 wherein the Supreme Court struck down a

notification issued in Jabalpur prohibiting the slaughter of bulls and

bullocks along with other animals, the sentiments of a particular section

of the people should be irrelevant in imposing a prohibition.

Nonetheless, the Court went contrary to this case as well, and it is

understood that the judges were affected by their own biases and

political notions.

In Hanif Qureshi, Supreme Court upheld the absolute prohibition of

slaughtering of cows (of all ages) and bulls and bullocks below the age of

16. But it held the absolute prohibition on the slaughtering of bulls and

bullocks above 16 to be unconstitutional and in violation of the

fundamental rights of butchers, as guaranteed under Article 19(1)(g).

Article 48A13 and 51A(g)14 were introduced after the case of Hanif

Qureshi, and the Court, in Mirzapur Kureshi, erred in saying that Hanif

Qureshi would have decided otherwise, had these two DPSPs been in

place. Article 48A only talks about safeguarding forests and wildlife,

which is an entirely different matter from the issue at hand. On the

other hand, Article 51A(g) talks about protection of wildlife and

compassion for living creature. It is evident from these provisions that

the intention of the legislature is only confined to wildlife and not on

domestic animals. Cattle are used for milk, they are kept on farms, and

after they become useless, they are sent to slaughterhouses. Therefore,

there is a distinction between domestic animals and wildlife. This might

be an issue relating to compassion for living creatures, but then, it has

12 Mohd Faruk v. State of Madhya Pradesh, [1959] S.C.R. 629. 13 Article 48A. “Protection and improvement of environment and safeguarding of

forests and wildlife The State shall endeavour to protect and improve the environment

and to safeguard the forests and wildlife of the country”. 14 Article 51A. (g) “to protect and improve the natural environment including forests,

lakes, rivers and wild life, and to have compassion for living creatures”.



to be seen from a different perspective. The expression compassion for

living creatures nowhere entails that slaughtering of all animals must

be prohibited. Therefore, since living creatures comprise all animals,

there seems no reason why compassion should be extended to only one

category of animals.

They also misconstrued the intention of the legislature in interpreting

Article 48, which prohibits “the slaughter of cows and calves and other

milch and draught cattle”. The prohibition of the slaughter of cows has

to be read in conjunction with other milch and draught cattle, which

suggests that as long as they are useful as draught and milch, they

should be prohibited from slaughtering. Therefore, it cannot be inferred

that it talks about prohibition even after a particular age, when they

become useless both as draught and milch animals. But they

conveniently observed that the “constitutional position on Article 48 is

well settled” and left no scope for further interpretation. As was rightly

observed in the case of Hasmattullah v. State of Madhya Pradesh,15

“absolute ban on the slaughter of bulls and bullocks is not necessary for

complying with Article 48 of the Constitution”. In Hashmattullah, a

three-judge bench held that a total ban on the slaughter of bulls and

bullocks in the State of Madhya Pradesh was unconstitutional.

This avant-garde interpretation of Article 48 must be undertaken in

light of the fact that our Constitution follows the doctrine of the living

tree. As was observed in the case of Supreme Court Advocates on Record

Association v. Union of India,16 “The Framers of the Constitution planted

in India a living tree capable of growth and expansion… It is not enough

merely to interpret the Constitutional text. It must be interpreted so as to

advance the policy and purpose underlying its provisions.”

15 Hasmattullah v. State of Madhya Pradesh, AIR 1996 SC 2076. 16 Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC

441.



III. RAMBLING ON THE FUNDAMENTAL RIGHTS

1. ARBITRARY CLASSIFICATION UNDER ARTICLE 14

Article 14 talks about the right to equality. It prohibits any kind of

unreasonable classification. The classification cannot be arbitrary, but

must have reasonable nexus with the object of the legislation. Article 14

does not apply where unequals are treated differently. To test whether

any legislation has reasonably classified persons, it must fulfil two

conditions:

a. That the classification which distinguishes one group of people

from the others must be based on the principle of intelligible

differentia, and cannot be arbitrary or evasive; and

b. The classification must have reasonable nexus with the object

that is sought to be achieved by the legislation.

The Court, in the case of Hanif Qureshi, classified the cow as a type of

cattle which is distinct from bulls and bullocks. They differentiated cows

on a flawed and arbitrary basis by observing that cow yields lesser milk

as compared to buffaloes and therefore, needs more protection, whereas

sheep and goat yield even lesser milk and therefore, have no utility. On

this basis of classification of cattle, the butchers of a particular section

of cattle, i.e. cows, were also categorised as a distinct class, and it was

observed that the right to equality under Article 14 has not been

violated.

This way, they held that the classification is based on intelligible

differentia, and has a reasonable nexus to object that the legislation

sought to achieve. This reasoning of the court was upheld in Mirzapur

Kureshi. Ultimately, on the underpinning of extending protection to

cows and tagging them as weak animals, absolute prohibition on the

slaughter of cows was upheld to be constitutional in both the cases.



2. UNREASONABLE RESTRICTIONS UNDER ARTICLE 19(1)(G)

Article 19(1)(g) guarantees the fundamental right to trade and

profession to every citizen of India. This right is not absolute, and is

subject to Article 19(6), which confers the power upon the state to impose

reasonable restrictions on the fundamental right, in the interest of the

general public. The appellant (mainly, the Qureshi community) argued

that an absolute ban on the slaughtering of cows is against their

fundamental rights guaranteed under Article 19(1)(g). One of the issues

that the court dealt was as to whether the state has the onus to prove

the constitutionality of the legislation, and that the restriction imposed

on a fundamental right is reasonable.

The presumption of constitutionality says that the presumption of the

court is in favour of the constitutionality of an enactment, and that the

burden is upon him who attacks it to show that there has been a clear

transgression of the constitutional principles.17 This is because it is

presumed that the legislature understands and correctly appreciates the

need of its own people, that its laws are directed to problems made

manifest by experience, and that the law is a permissible limitation.18

But, this aforesaid principle of presumption of constitutionality is

subject to an exception that if a citizen is able to establish that the

legislation has invaded his fundamental rights, then the state must

justify that the law be saved.19

In Abdul Hakim Qureshi v. State of Bihar,20 (also known as Qureshi-II),

the issue was with a restriction on the slaughter of bulls and bullocks.

Since absolute prohibition on the slaughter of cows was already upheld

in the case of Hanif Qureshi, they didn't delve into that issue. They

observed that if there is a law restricting the fundamental right under

Article 19(1)(g), then the onus is upon the state to prove its validity. The

Court, in Mohd. Faruk, rejected one of the contentions of the state that

17 Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538. 18 Id. 19 Union of India v. Elphinstone Spinning and Weaving Co. Ltd., AIR 2001 SC 724. 20 Abdul Hakim Qureshi v. State of Bihar, AIR 1961 SC 448.



discretion is vested upon the state to cancel the license of the

slaughterhouse, to which Court replied that it cannot be done at the

whims and fancies of the state, and has to be adjudged in the light of

fundamental rights of the person affected. But the Court, in Qureshi-IV,

despite the clear violation of the fundamental rights, erred in observing

that the onus is upon on the petitioners to prove that the legislation has

imposed unreasonable restrictions on his fundamental rights. This is in

clear violation of the doctrine of stare decisis in relation to the previous

precedents set by the Supreme Court.

Another issue that crops up while dealing with Article 19(1)(g) is

whether the reasonable restrictions prescribed under Article 19(6)

include absolute prohibition. The Court, in Narendra Kumar v. Union of

India,21 held that absolute prohibition can also be a reasonable

restriction. Then, the only thing that needs to be considered by the

legislation is “whether the lesser remedy would be inadequate”. They also

reiterated the guidelines for imposing reasonable restrictions laid down

in Pathumma v. State of Kerala.

The Court, in Mohd. Faruk, correctly applied these guidelines in the

facts and circumstances present before them, and held that the

impugned notification (imposing an absolute ban on the slaughtering of

bulls and bullocks) is not in the general interest of the public, but merely

to respect the sentiments of a particular section of society. But the

Court, in Qureshi-IV, despite citing Narendra Kumar, Qureshi-II and

Mohd. Faruk, failed to apply the test of reasonableness; instead, the

judgment seems contrary to all these tests. The restraint would be

reasonable and served a better purpose if the restriction had been only

till 16 years of age of all cattle (including a cow). When they are unable

to work either as milch or draught animals, they serve no purpose of

public interest until they are butchered and served as food. This way,

the business of the butchers could also have been saved and beef, as a

source of cheap protein, could be easily provided.

21 Narendra Kumar v. Union of India, [1960] 2 SCR 375.



As per a report, India is the highest exporter of beef in the world,22 and

has a good share in the total meat exports. Banning it will adversely

affect the business of butchers and the economy. The Court, in this case

also, said that it is not a case of absolute prohibition, as the butchers

have other animals to slaughter. This is a flawed reasoning given by the

Court: just because there are other avenues available does not mean

that the restriction is not absolute and unreasonable.

The Supreme Court, in the case of Hinsa Virodhak Sangh v. Mirzapur

Moti Qureshi,23 while upholding the ban on meat for seven days,

observed that “had the ban on slaughterhouses been for a considerable

period of time, it would have been an excessive restriction on the

fundamental rights of butchers guaranteed under article 19(1)(g)”. This

is the first case in a range of cases on meat ban that mentions the right

to eat food of one's choice as a part of right to privacy, which is, in turn,

included under Article 21.

In Hanif Qureshi, the Court decided that cattle ceased to be useful after

a particular age, and cannot be used either as milch or draught animal.

The more pertinent judgment, however, is Qureshi-II, where the Court

held the restriction on the slaughter of bulls, bullocks and she-buffaloes

below the age of 20 or 25 years as unreasonable, and it was observed

that they became useless after the age of 16 years, and their

maintenance becomes a burden. In Haji Usmanbhai Qureshi v. State of

Gujarat (also known as Qureshi-III),24 the Supreme Court also observed

the same line of thought. But Mirzapur Kureshi took another large

deviation here and observed (on the basis of a dismal and biased report)

that cattle continue to be useful even after the age of 16.

It further observed that term public interest is of wide import and

includes public health, public order, public security and the economic

welfare of the community. On this basis, it was held by the Court that

22 Rishi Iyengar, India Stays World’s Top Beef Exporter Despite New Bans on

Slaughtering Cows, TIME, Apr. 24, 2015, http://time.com/3833931/india-beef-exports-

rise-ban-buffalo-meat/. 23 Hinsa Virodhak Sangh v. Mirzapur Moti Qureshi, AIR 2008 SC 1892. 24 Haji Usmanbhai Qureshi v. State of Gujarat, AIR 1986 SC 1213.



the classification was based on intelligible differentia, and it upheld the

ban as reasonable and in the interest in the general public. There seems

to be a clear paradox in the reasoning of the Court, as they observed that

public interest includes the economic welfare of community, but didn’t

explain how putting a ban on the slaughtering of cattle and snatching

away the fundamental right of trade and profession of butchers (who

generally belongs to a particular community) is for their economic

welfare.

The Court, in Qureshi-IV, gave another absurd reasoning in observing

that animals other than bullocks are slaughtered in large numbers, and

therefore, the prohibition would not affect the adversely; hence, it is not

a case of absolute prohibition. As was rightly countered by the

dissenting opinion of A.K. Mathur, J., “slaughtering of these bulls and

bullocks beyond the age of 16 years constituted only 1.10% of the total

slaughtering that takes place in the State, then I fail to understand how

this legislation can advance the cause of the public at the expense of the

denial of Fundamental Right of this class of persons (butchers)”. The

Court has, therefore, acted on a majoritarian impulse and completely

disregarding the fundamental rights of the minorities.

The Court, in Mirzapur Kureshi placed reliance on the report of National

Commission on Cattle. Several of its recommendations are unreasonable

and prima facie unconvincing, and some of them are downright absurd.

The report alludes to right to food by claiming that the right to life is

protected by cheap and nutritious food, which can be provided by bovine

dung, remarking that “bovine dung is the most fundamental thing for

the fundamental right of a human being”. It is prima facie clear that the

connection drawn between bovine dung and right to food is vague and

injudicious. It even says that bullocks above the age of 16 years are fit

for ploughing, to which the Court agrees, but the Court does not find

this to be cruel. Ironically, in defending the restriction, the Court, in its

judgment, talked extensively about cruelty and the need for compassion

for living creatures. The report even recommended that the prohibition

on the slaughter of cattle should be included in our fundamental rights.



Based on this baseless report, the Court rejected the argument given in

Qureshi-I that bulls and bullocks become useless to the public after the

age of 16 years. The Court also observed that even after 16 years of age,

bulls and bullocks are economical as it excretes dung, which is extremely

useful for production of manure. This is an invalid assumption that in

all conditions, useless cattle will be economical, and that the profits

accruing from its dung will exceed the cost of fodder and other

maintenance costs. In that case, should it not be left to the ordinary

prudence of a person to benefit by selling the dung or by selling the cattle

to a slaughterhouse? The Court needed to think from the perspective of

the persons maintaining the cattle. On the other hand, the Court, in

Hanif Qureshi, correctly held that the country is in short supply of milch

cattle, and that the maintenance of old cattle imposes an unnecessary

burden.

3. THE GHOST OF ‘STARE DECISIS’

While the court was saving the ban on the slaughtering of cattle by

giving preposterous reasons, the only impediment was the principle of

stare decisis, which was haunting the court like a ghost. The Court, in

order to get rid of it, observed that it would be inappropriate to follow

the principle of stare decisis, given the changes in facts and

circumstances dictated by forceful factors. The Court turned down the

diktat in Hanif Qureshi on several grounds (except on Article 14), as it

believed that the factual situation has altered. It was observed on the

basis of factual and legal components that Qureshi-I has lost much of its

significance, and therefore, there is a lot of material justifying the need

to change that opinion. The Court also used the observation made in

Kesavananda Bharati that fixed and universal principles cannot be laid

down, and will vary from case to case, having regard to the changing

conditions, the values of human life, social philosophy of the

Constitution, prevailing conditions and the surrounding circumstances,

all of which must enter into the judicial verdict. But the Court grossly

misunderstood the facts and circumstances, on the contrary, the court



failed to appreciate the spirit of the Constitution and the changes in the

surrounding circumstances, as is evident from the judgment. The

modernist era requires us to look beyond status quo, and to contemplate

over the need of every section of the society. The decisions in Hanif

Qureshi, Qureshi-II, Qureshi-III, Hinsa Virodhak Sangh and Mohd.

Faruk cautioned against absolute prohibition, which the Court, in this

case, completely neglected and went ahead with its own reasoning,

instead.

If they are extrapolating that the principle of stare decisis is obsolete

and there is no need to cogently follow it, then is why the same not

considered in relation to the presumption in favour of legislation. The

Court relied extensively on the principle of presumption of

constitutionality, which a range of cases has subjected to the

fundamental rights. Also, a legislation cannot always be absolutely

trusted, given the fact that representatives are chosen out of a few and

have their own biases, and they themselves often act on majoritarian

impulses.

Also, the Court, in Mirzapur Kureshi, observed that Hanif Qureshi dealt

with social and economic conditions of Bihar and Uttar Pradesh, which

are dissimilar to that of Gujarat, and that has an immense difference.

This gave the Court leeway in applying the principle of stare decisis less

stringently. But the benefit of flexibility of stare decisis was not enjoyed

by the Bombay High Court in the Shaikh Zahid Mukhtar case, even

though they were dealing with a legislation concerning the social and

economic conditions of Maharashtra, which is vastly different from that

of Gujarat, as dealt with in Mirzapur Kureshi. Therefore, going by the

reasoning of Mirzapur Kureshi, their precedent should not be binding on

cases relating to the interpretation of similar legislations enacted in the

other states because of the difference in prevailing conditions and the

varying facts and circumstances. Nevertheless, there is a need to

reconsider the decision of Mirzapur Kureshi, as their problematic

reasoning will affect all subsequent decisions on this matter.



4. RIGHT TO FOOD AND PRIVACY IMPLICIT UNDER ARTICLE 21

The Supreme Court, in Mirzapur Kureshi, virtually excluded the ambit

of Article 21. Unlike in the case of Shaikh Zahid Mukhtar, the Court, in

Mirzapur Kureshi, did not delve upon the ancillary issues like

possession and transportation. This gave the Bombay High Court (in

Shaikh Zahid Mukhtar) leeway in deciding the impugned provision

affecting the right to privacy and the right to food, which are both parts

of Article 21. The Court, in Hinsa Virodhak Sangh, has observed “[A]

large number of people are non-vegetarian and they cannot be compelled

to become vegetarian for a long period. What one eats is one’s personal

affair and it is a part of his right to privacy which is included in Article

21 of our Constitution as held by several decisions of this court”. The said

observation needs more elaboration than what was given in the case of

Shaikh Zahid Mukhtar, wherein the decision extended only to the issue

of possession of beef which is slaughtered outside state.

The ambit of the aforesaid fundamental rights should be given a wide

interpretation so as not to snatch away the right of food, especially of

the community which is in minority, as beef is one of their cheap sources

of protein and nutrients. In India, we already have a dearth of food and

millions of people belonging to the lower strata cannot afford one square

meal a day. So, in a country suffering from dire hunger problems, it is

highly imprudent to put up a ban on beef, which is largely consumed by

a marginalised section of the society, is enriched in nutrients and

proteins, and is very easy to procure.

IV. CONCLUSION

The contentious issue of beef ban presents various constitutional and

other fundamental questions. The paper has critically investigated the

ways in which the judiciary has outlawed the profession of butchers. The

judgment in the case of Mirzapur Kureshi is crammed with farcical

rationale for defending the constitutionality of a ban on the slaughter of

cows, bulls and bullocks. The paper argues that an absolute prohibition



imposed on the business of a particular section of butchers is

unreasonable and thereby, unconstitutional.

Our Constitution follows the living tree doctrine, and Article 48 has to

be interpreted in that context. The harmonious construction of Article

48 and the right to profession will allow the slaughtering of cattle

beyond a particular age, i.e. 16 years, as decided in the case of Hanif

Qureshi. The judiciary has given lots of emphasis on Article 48A and

51A(g), but they are prima facie impertinent to the issue present herein.

On the other hand, the Bombay High Court has done a better job by

delving into Article 21 and recognizing the right to food as an integral

part of the right to privacy. However, the scope of Article 21 is kept

limited to the consumption of beef; but when slaughtering is prohibited,

there will be no availability of beef and consequently, it will infringe the

right to food.

The after-effects of an absolute ban on the slaughter of cattle in

Maharashtra has been adverse on the Qureshi community of butchers,

traders and leatherworkers.25 This has caused huge economic loss for

the butchers, and will become burdensome for the farmers, who will be

unable to replace the old livestock with the new.26 The beef ban promotes

certain religious practice, and in doing so, becomes inimical to secular

foundation of our democratic country27. The repercussion will be the

exclusion of certain marginalised communities, such as the traders and

consumers of cattle-derived products.28 The Indian legal system has

hereby failed to recognise the importance of the traditions of minority

groups, and enabled the snatching away of their right to food.29

25 Sagari R. Ramdas, The Beef Ban Effect: Stray Cattle, Broken Markets and Boom

Time for Buffaloes, The WIRE, Apr. 6, 2017, https://thewire.in/politics/beef-ban-cattle-

market. 26 Id. 27 Sarkar, supra note 3. 28 Id. 29 Bouayad, supra note 2.



COURT’S JURISDICTION TO ENQUIRE INTO PROCEEDINGS

OF THE PARLIAMENT: A COMPARATIVE ANALYSIS

Akshita Mittal†

ABSTRACT

We have been witnessing a tussle between the

Legislature and the Judiciary since time

immemorial. One such area which is frequently

subject to such altercation is the Court’s jurisdiction

to enquire into parliamentary proceedings. The

constitutional provisions for parliamentary

privileges are vague. In these circumstances, the

Indian Courts have expounded upon the law of

parliamentary privileges, on various occasions, to

accord some concreteness to the issue. Additionally,

the underlying objective behind including such a

provision in the Constitution is to exclude the

jurisdiction of the Court with respect to internal

matters of the Parliament.

This system is based on the United Kingdom’s

system, where the Parliament is sovereign and

possess absolute power to regulate its own affairs. It

provides autonomy over all the matters which take

place within its four walls, with the exception of

crimes. The primary objective of this article is to

examine the scope of parliamentary privileges in

India, particularly in relation to the jurisdiction of

the courts. In this article, since we have adopted the

concept of the parliamentary system from the United

Kingdom—a common law nation, the author does a

comparative analysis between the parliamentary

model existing in the United Kingdom and the one in

India.

† 3rd year law student at Maharashtra National Law University, Nagpur. The author

may be reached at [email protected].





I. POSITION IN THE UNITED KINGDOM

1. SUPREMACY OF PARLIAMENT

The cornerstone of the British legal system is the supremacy of

Parliament. The Parliament is conferred with absolute authority in the

United Kingdom, and therefore, the Courts do not possess much power

in their hands. The Parliament has the right to legislate a law on any

subject whatsoever, and no institution can override it. Even the Courts

cannot invalidate the law on the ground of incompetence of passing such

legislation, that is, they do not have the required authority to declare a

law void or unconstitutional.1

The United Kingdom does not have a written constitution, and

therefore, the power of the Parliament to legislate is legally

unrestricted. Hence, it can change even a constitutional principle by the

same ordinary process as it enacts an ordinary law. However, taking

into account the political aspect, Britain has a responsible government

with an elected House of Commons, which reflects the contemporary

public opinion, social morality, or consciousness; and for that reason, it

never takes any decision which has the probability to face a large

opposition.2

The United Kingdom has no doctrine of unconstitutionality of

parliamentary legislation, and so, a law enacted by Parliament cannot

be questioned or challenged in a court of law on any ground. The courts

have been assigned the task to interpret the law enacted by Parliament

and apply it to the factual situations given for adjudication. The courts

do not possess the power to scrutinise a law with reference to any

fundamental rule. However, in some situations, the Courts can take a

view which is contrary to the view expressed by the Parliament.3

The battle between the judiciary and the Parliament in United Kingdom

arose primarily because of the sovereignty of the Parliament and its

1 A.V. DICEY, THE LAW OF THE CONSTITUTION 27 (1st ed., J. W. F. Allison 2013). 2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 117 (8th ed. 2018). 3 Id, at 118.



established dominance over the judiciary. Consequently, the judiciary

had to struggle to make its own place. As a result, the British

constitutional history does not have strict applicability in India.

1.1. Parliamentary Privileges

Having established the supremacy of the Parliament, it is pertinent to

lay importance on some of the benefits enjoyed by the members of the

Parliament. They are provided with legal immunity known as

Parliamentary Privilege, which protects them from unnecessary suits.

Moreover, it also enables them to perform their functions in an efficient

and effective manner without unnecessary interference. These

privileges, among others, include freedom of speech, freedom from arrest

on civil matters, and most importantly, the power to control the

parliamentary proceedings.4 Such parliamentary privilege also provides

immunity from prosecution against defamation or breach of the Official

Secrets Act. It applies to speeches, questions or responses given during

parliamentary proceedings in the House of Lords and the House of

Commons. But it does not provide immunity in all instances, such as

against arrest for criminal offences or work done outside the floor of the

parliament.5

The concept of parliamentary privilege dates back to seventeenth

century. Earlier, this provision was a part of the Bill of Rights and was

passed by the Parliament in December 1689. The relevant portion is

stated as follows: 6

The freedom of speech and debates or proceedings in

Parliament ought not to be impeached or questioned in any

court or place out of Parliament.

4 Parliamentary Privileges, GLOSSARY, July 2018, https://www.parliament.uk/site-

information/glossary/parliamentary-privilege/. 5 Andy Bloxham, Parliamentary Privilege: A Guide, THE TELEGRAPH, July 2018,

https://www.telegraph.co.uk/news/newstopics/mpsexpenses/8122599/Parliamentary-

privilege-a-guide.html. 6 Parliamentary Privilege: Immunities and Powers of the House, NEW SOUTH WALES

LEGISLATIVE COUNCIL PRACTICE 50, 47 (Sept. 18, 2018).

https://www.parliament.uk/site-information/glossary/parliamentary-privilege/






https://www.telegraph.co.uk/news/newstopics/mpsexpenses/8122599/Parliamentary-privilege-a-guide.html






Parliamentary privilege in the United Kingdom can be classified broadly

into two categories that are freedom of speech, and exclusive cognisance

to control its own affairs.7 In the year of 1997 in United Kingdom, a Joint

Committee of both the houses, that is, the House of Lords and the House

of Commons, was called upon to review the parliamentary privileges and

make the required recommendations.8

1.2. Court’s Jurisdiction: The Judicial Path

Endorsing the supremacy of Parliament, in Stockdale v. Hansard,9 and

Lee v. Bude & Torrington Railway Co.,10 it was held that the Acts of

Parliament are the law of the land and Courts do not sit as Courts of

Appeal for the Parliament. Even Lord Campbell had said,

All that a court of justice can do is to look to the Parliament

rolls: if from that it should appear that a Bill has been

passed by both the House and received Royal Assent, no

court of Justice can inquire into the mode in which it was

introduced into Parliament…11

Even the case of the Sheriff of Middlesex12 proved this point further. In

this case, the sheriff was imprisoned for contempt under a warrant

issued by the Speaker. When he was brought before the Queen’s Bench

by the way of habeas corpus, the Judges held that they could not enquire

into the contempt proceeding. The courts have no power to disregard an

Act of Parliament, whether public or private, nor do they have any power

to examine the proceedings in the Parliament to determine whether an

Act has been obtained by irregularity or fraud. For example, that it was

not passed through the customary three readings in the House of

Commons,13 that the Bill was not assented to by a majority of members

7 JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE REPORT, 2013. 8 Orders of Reference, PARLIAMENTARY PRIVILEGE FIRST REPORT (July, 2018),

https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4301.htm. 9 Stockdale v. Hansard, 9 A&E 1. 10 Lee v. Bude & Torrington Railway Co., (1871) LR & CP 576. 11 Edinburgh Railway v. Wanchop, (1842) 8 Cl&F 710 (732) (HL). 12 Sheriff of Middlesex, 11 A&E. 13 Id, at 11.

https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4301.htm



present and voting, or that it has been passed in disregard of the

Standing Orders of either House of Parliament,14 are all issues are

outside the jurisdiction of the courts. 15

However, the case of R. v. Graham Campbell16 established a peculiar

situation of immunity whereby the House of Commons possessed the

power to sanction breaches of any statute relating to any issue that took

place within the walls of the House.

The crux could be summarized by quoting Justice Stephen in the case of

Bradlaugh v. Gossett:17

The House of Commons is not a Court of Justice, but the

effect of its privilege to regulate its own internal concerns

practically invests it with a judicial character when it has

to apply to particular cases the provisions of Parliament…If

its determination is not in accordance with law, this

resembles the case of an error by a Judge whose decision is

not subject to appeal.

The recent holding is that Courts will not challenge or assault, by an

order of its own, an assertion of authority issued by Parliament,

pursuant to the Parliament’s own procedure.18 Therefore, the general

principle prevalent in United Kingdom was that the Parliament was

supreme, and hence, its acts were not questionable in a court of law.

II. POSITION IN INDIA

1. BACKGROUND

In India, the legislature and the judiciary share a special bond as one

makes the law, while the other interprets it. Both organs work in

14 Picklin v. British Railways Board, (1974) AC 765. 15 PHILLIPS, OWEN HOOD, JACKSON & PAUL, CONSTITUTIONAL AND ADMINISTRATIVE

LAW 46 (6th ed. 1978). 16 R. v. Graham Campbell, (1935) 1 KB 594. 17 Bradlaugh v. Gossett, (1884) 12 QBD 271. 18 Hamilton v. Al Fayed, (2001) AC 395.



tandem with each other. The Parliament cannot be said to be supreme

in the sense that it overpowers the judiciary. Moreover, India has a

written Constitution which defines the boundaries of working for all

state instrumentalities. By virtue of Article 245(1), the legislative power

of the Parliament has been specifically made subject to the provisions of

the Constitution. Also, the Courts have the power to check the validity

of the laws made by the Parliament. There are procedures laid down in

the Constitution through which the constitutional courts may be invited

to scrutinise a legislation and ascertain if a constitutional provision has

been transgressed by the Parliament while enacting a law.19

The importance of the Parliament is not undermined by the

governmental structure of the country. It is the source of all central

legislations, and if a parliamentary legislation does not infringe any

constitutional limit, then the function of the courts is only to interpret

and apply the law. In that scenario, the courts cannot question the policy

or wisdom of legislation. Also, the courts cannot declare a statute

unconstitutional simply on the ground of harsh provisions or of being

passed in a mala fide manner; even if a law is struck down by the courts

as being invalid for an infirmity, the Parliament can cure the same by

passing another law by removing the infirmity in question (as generally,

a law cannot overrule a court decision).20 The doctrine of parliamentary

sovereignty, as prevalent in the United Kingdom, does not hold true in

India, except to the extent and in the fields provided by the Constitution.

There are separate provisions which deal with parliamentary privileges

and the courts’ jurisdiction to inquire into parliamentary proceedings.

Both notions have been given their due importance by getting a

sufficient mention in the Constitution of India.

1.1. Concept of Parliamentary Privileges

Sir Thomas Erskine May has defined the expression parliamentary

privileges as:

19 Jain, supra note 2, at 119. 20 Id.



The sum of the peculiar rights enjoyed by each house

collectively is a constituent part of the High Court of

Parliament, and by members of each house of parliament

individually, without which they cannot discharge their

functions, and which exceed those possessed by other bodies

or individuals.21

Article 105 and Article 194 of the Constitution of India state the

privileges and immunities of the Parliament and its members, and of

the state legislatures and their members, respectively. These provisions

of the Constitution do not exhaustively enumerate the privileges of

Indian parliamentarians as clause 3 of both these articles refers directly

to the privilege of the House of Commons at the commencement of the

Constitution. Thus, it basically deals with all those privileges that

existed in the House of Commons as of 26 January, 1950.22 The present

position in the law of parliamentary privileges in India was enunciated

in the case of Raja Ram Pal v. Speaker, Lok Sabha.23

2. HISTORY OF ARTICLE 122 OF CONSTITUTION OF INDIA

Originally a similar provision, prohibiting court intervention into

parliamentary proceedings, was part of Section 41 of the Government of

India Act. It barred the validity of any proceeding in Federal Parliament

from being called in question on the ground of any alleged irregularity

of procedure. Additionally, it also gave protection to the officers or other

members of the Federal Parliament, in whom the powers were vested

for the regulation of procedure or maintenance of proper order, in the

conduct of business against court intervention with regard to exercise of

those powers.24

21 Parliamentary Privileges, Sept. 10, 2018,

https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER—8.pdf. 22 Jain, supra note 2, at 89. 23 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184. 24 VIII DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 9045 (9th ed.

2017).

https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER—8.pdf

https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER—8.pdf



The First Draft Constitution prepared by the Constitutional Advisor in

October 1947 had fully reproduced the provision in its letter and spirit

as Clause 85. The Drafting Committee had decided to include and adopt

the provision as Article 101 of the Draft Constitution on 21 February,

1948. Thereafter, deliberations and discussions took place over the

provision at length on 23 May, 1949.25

2.1. Constituent Assembly Debate

There were primarily two issues which had formed the subject matter of

discussion in the Constituent Assembly Debate in 1949. One was raised

by Mr. H.V. Kamath and the other was raised by Mr. Naziruddin Ahmad

– both members of the Constituent Assembly.26

The first concern was a suggestion by voicing out an amendment to

insert the words ‘in any court’ at the end of Clause 1 to make the existing

text clearer. But Ambedkar was not convinced, and instead, said that it

was not necessary because proceedings of the Parliament cannot be

questioned at any place but a court of law. Therefore, this proposition

was rejected.27

The second concern was to substitute the words ‘or other member’ with

‘and no member’ in clause 2 of the provision. It was raised because Mr.

Ahmad wanted to distinguish between an officer and a member of the

House. This suggestion was also rejected as it was concluded that the

Speaker and the Deputy Speaker are officers as well as members of the

Parliament, in whom powers are already vested by the Constitution;

thus, the other members need to be protected specifically.

Hence, both the proposals of amendment were outlawed, and after all

the due deliberations, the Assembly adopted the specific provision and

added it to the Constitution. At the revision stage, the provision was

renumbered as Article 122 of the Constitution of India.

25 Constituent Assembly Debates (Proceedings) – VIII, CONSTITUENT ASSEMBLY

Debates, 199-201, May 23, 1949,

https://cadindia.clpr.org.in/constitution_assembly_debates/volume/8/1949-05-23. 26 Id. 27 Id.



3. JUDICIAL INTERPRETATION

In the much-celebrated case of M.S.M. Sharma v. Shree Krishna

Sinha,28 commonly known as the Searchlight Case, it was laid down that

any investigation outside the Parliament, in respect of anything said or

done by members during the discharge of their parliamentary duties,

would amount to a serious interference with their rights. Even though a

speech delivered by a member in the House may be held as contempt of

court, by virtue of Article 122, no action can be taken against him in any

court; the court, being an outside authority, does not possess the

requisite power to probe the matter. Hence, the position was clear—no

court can examine the questions which come within the ambit of special

jurisdiction of the legislature, as it has the power to conduct its own

affairs. It also observed that:

Once it has been held that the Legislature has the

jurisdiction to control the publication of its proceedings and

to go into the question whether there has been any breach of

its privileges, the Legislature is vested with complete

jurisdiction to carry on its proceedings in accordance with

its rules of business. Even though it may not have strictly

complied with the requirements of the procedural law laid

down for conducting its business, that cannot be a ground

for interference by this Court under Art. 32 of the

Constitution. Courts have always recognised the basic

difference between complete want of jurisdiction and

improper or irregular exercise of jurisdiction. Mere non-

compliance with rules of procedure cannot be a ground for

issuing a writ under Art. 32 of the Constitution.29

In the case of Indira Nehru Gandhi v. Raj Narain,30 it was held that

the validity of the proceedings of the two Houses of Parliament are

non-justiciable matters, as they relate to the internal domain of two

28 M.S.M. Sharma v. Shree Krishna Sinha, AIR 1960 SC 1186. 29 Id. 30 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.



Houses. But the Court can examine whether the measures passed by

the Parliament are constitutionally valid or not. At the same time,

the validity of the proceedings cannot be challenged on the grounds

that some members were prevented from attending and participating

in the discussions.

3.1. Speaker of the House

Also, it has been laid down that the courts should not interfere with

matters which pertain to enquiry by and satisfaction of the Speaker. In

a scenario of resignation being submitted and forwarded to the Speaker

of Lok Sabha, it is not the business of the courts to intrude into the

discretion of the Speaker.31 Furthermore, the validity of the Speaker’s

decision, concerning the adjournment of the House sine die, and later

resuming the sittings, cannot be inquired into on the grounds of

irregularity.32

Moreover, the courts are not permitted to issue a writ prohibiting the

Speaker from presiding over sittings of the House. No writ can lie to stop

the passage of a Bill in the Parliament.33 It is for the Speaker of the

House to allow or disallow a resolution to be raised or discussed in the

House. The courts cannot, at this stage, seek to regulate the procedure

of the House and arrogate to itself the powers of the Speaker. Even

where a law has been promulgated, it is not the duty of the courts to act

in supervisory character and rectify the defects suo motu.34 But the

Speaker’s ruling on the validity of an Ordinance cannot be regarded as

final and binding. A Speaker cannot act contrary to the law and

constitutional injunctions.35

Basically, until a Bill becomes a law, the legislative power not being

complete, the courts cannot examine it. Neither a court nor a judge has

the power to directly declare any law void or annul the same

31 Panna Lal Agyan v. Hon’ble Speaker, Sri Balram Jhagad, AIR (1988) All 167. 32 Basu, supra note 24, at 9052. 33 Chotey Lal v. State of U.P., AIR 1951 All 228. 34 Hem Chandra Sen Gupta v. Speaker of Legislative Assembly, West Bengal, AIR

1956 Cal 378. 35 State of Punjab v. Sat Pal Dang, AIR 1969 SC 903.



immediately after its promulgation. It is allowed to do so only when an

interpretation is sought by any person who challenges the vires of the

law on the basis of infringement of rights, or claiming it to be ultra vires

of the powers of the legislative body.36 However, it can be examined

whether proceedings conducted under Article 105(3) and Article 194(3)

are tainted on account of substantive or gross illegality or

unconstitutionality.37

3.2. Procedure

Another important aspect to be considered is that Article 122 or Article

212 specifically relate to irregularities regarding procedure. Where

there are no irregularities of procedure with respect to a resolution of

the Parliament being challenged, Article 122 cannot be called into

question.

In Raja Ram Pal’s case,38 it was reasserted that,

Art. 212(1) seems to make it possible for a citizen to call in

question in the appropriate court of law the validity of any

proceedings inside the legislative chamber if his case is that

the said proceedings suffer not from mere irregularity of

procedure, but from an illegality. If the impugned procedure

is illegal and unconstitutional, it would be open to be

scrutinised in a court of law, though such scrutiny is

prohibited if the complaint against the procedure is no more

than this that the procedure was irregular.39

Irregularity of procedure refers only to irregularity in the observation of

the rules of procedure and conduct of business specified in Article 118 of

the Constitution, and not the provisions of the Constitution defining

legislative competence. Therefore, it can be said that parliamentary

36 C. Shrikishen v. State of Andhra Pradesh, AIR 1956 Hyd 186. 37 Amarinder Singh v. Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113. 38 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184. 39 Keshav Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745.



proceedings are subject to judicial review if it is contested on illegality

and not irregularity.

3.3. Anti-Defection Law

The Tenth Schedule to the Constitution provides that all proceedings in

relation to disqualification of a member of a House would be deemed to

be proceedings in the Parliament within the meaning of Article 122 or

proceedings in the legislature of a State within the meaning of Article

212, notwithstanding anything else contained in the Constitution;

therefore, no court will have any jurisdiction in respect of any matter

connected with the disqualification of a member of a House.40

By the virtue of paragraph 6(1) of the Tenth Schedule, an adjudicatory

power was being vested in the Speaker of the House. This was added to

the Constitution through the 52nd Amendment Act, 1985 and the proviso

to that paragraph made the decision of the Speaker final. Also,

paragraph 7 bars the jurisdiction of the Courts to entertain any matter

related to disqualification of a member on the ground of defection.

However, a Constitution bench of the Hon’ble Supreme Court, in the

case of Kihoto Han v. Zachilhu,41 held that notwithstanding the finality

clause and bar of jurisdiction, the decision of the Speaker shall be open

to review of the Supreme Court under Article 136, or the review of the

concerned High Court under Article 226 of the Constitution. It held that:

…even after 1986 when the Tenth Schedule was introduced,

the Constitution did not evince any intention to

invoke Article 122 or 212 in the conduct of resolution of

disputes as to the disqualification of members under

Articles 191(1) and 102(1). The very deeming provision

implies that the proceedings of disqualification are, in fact,

not before the House; but only before the Speaker as a

specially designated authority. The decision under

paragraph 6(1) is not the decision of the House, nor is it

40 2 SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA 1098 (2nd ed. 2015). 41 Kihoto Han v. Zachilhu, AIR 1993 SC 412.



subject to the approval by the House. The decision operates

independently of the House. A deeming provision cannot by

its creation transcend its own power. There is, therefore, no

immunity under Articles 122 and 212 from judicial scrutiny

of the decision of the Speaker or Chairman exercising power

under Paragraph 6(1) of the Tenth Schedule.

Recently, the same principle was echoed again:42 that the Speaker,

while exercising the powers under the Tenth Schedule, acts in a quasi-

judicial authority, adjudicating rights and obligations, instead of just

being a Speaker or an official of the House.43

3.4. Recent Illustrations

There are many political scenarios relating to elections where the

question concerning the conflict between the legislature and the

judiciary has arisen. The significant ones are mentioned herein. The

most illustrious of all, the Jharkhand Mukti Morcha case, in which some

members of the Parliament had taken bribes to vote against a no-

confidence motion. Unfortunately, the Hon’ble Supreme Court could not

have held them liable because they took the protection of Article

105(2).44 In 2015, in the state of Arunachal Pradesh, the Governor was

not permitted to conduct the Legislative Assembly on his own fanciful

terms and conditions: the Court held that using discretionary powers to

summon or dissolve Assembly sessions without the aid and advice of the

Chief Minister and his Cabinet is plainly unconstitutional.45 Further, in

Uttarakhand, the Apex Court had told the Central Government that the

42 Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305. 43 Basu, supra note 24, at 9059. 44 Fali S. Nariman, Jharkhand Mukti Morcha bribery scandal: In 1993, corruption

got institutionalised in India, INDIA TODAY, Dec. 26, 2005 (Sept. 2018),

https://www.indiatoday.in/magazine/cover-story/story/20051226-jharkhand-mukti-

morcha-bribery-scandal-in-1993-corruption-got-institutionalised-in-india-786386-

2005-12-26. 45 Krishnadas Rajagopal, SC Quashes Arunachal Governor's Order, Restores Tuki

Govt. to Power, THE HINDU (Sept. 2018),

https://www.thehindu.com/news/national/SC-quashes-Arunachal-Governors-order-

restores-Tuki-govt.-to-power/article14486816.ece.

https://www.thehindu.com/news/national/SC-quashes-Arunachal-Governors-order-restores-Tuki-govt.-to-power/article14486816.ece






Court possessed the necessary power to allow the ousted Chief

Minister’s petition challenging the imposition of President’s Rule, and

to ensure that a floor test is held.46

Most recent of all, in 2018, in the state of Karnataka, a three-judge

bench of the Hon’ble Supreme Court ordered a floor test on immediate

basis, cutting down the window of fifteen days granted by the governor

to an influential political party candidate for the position of Chief

Minister, to gain confidence in the respective state legislative

assembly.47 In another case from the same state, a division bench had

observed that it has power to request the Speaker to dispose of the

disqualification petitions at the earliest in the interest of justice and to

maintain dignity of the office of the Speaker of the Legislative

Assembly.48 It held that merely reminding the Speaker to discharge his

obligation to consider and take a decision on the petition filed for

disqualification does not amount to judicial review.49

Delving into anti-defection law, the other states have also raised their

concern over judicial scrutiny. Therefore, time and again the occasion

arises to determine whether the judiciary can intervene in

parliamentary proceedings.

III. COMPARATIVE ANALYSIS

The general principles of United Kingdom have not been accepted in

India in their entirety. Though India has borrowed the parliamentary

46 B.S. Web Team, Uttarakhand HC Quashes President's Rule: 10 Things to Know,

THE BUSINESS STANDARD (Sept. 2018), https://www.business-

standard.com/article/current-affairs/uttarakhand-hc-quashes-president-s-rule-10-

things-to-know-116042100880_1.html. 47 Supreme Court Orders Floor Test in Karnataka Assembly on Saturday, THE TIMES

OF INDIA (Sept. 2018), https://timesofindia.indiatimes.com/india/supreme-court-

proposes-floor-test-in-karnataka-assembly-on-saturday/articleshow/64217207.cms. 48 Ashok K.M., Reminding Speaker to Decide On Disqualification Petition Doesn’t

Amount To Judicial Review: Karnataka HC, LIVE LAW (Sept. 2018),

https://www.livelaw.in/reminding-speaker-to-decide-on-disqualification-petition-

doesnt-amount-to-judicial-review-karnataka-hc-read-judgment/. 49 Zameer Ahmed Khan v. State of Karnataka, WRIT APPEAL No. 1319/2018.

https://www.business-standard.com/article/current-affairs/uttarakhand-hc-quashes-president-s-rule-10-things-to-know-116042100880_1.html



https://timesofindia.indiatimes.com/india/supreme-court-proposes-floor-test-in-karnataka-assembly-on-saturday/articleshow/64217207.cms

https://timesofindia.indiatimes.com/india/supreme-court-proposes-floor-test-in-karnataka-assembly-on-saturday/articleshow/64217207.cms

https://www.livelaw.in/reminding-speaker-to-decide-on-disqualification-petition-doesnt-amount-to-judicial-review-karnataka-hc-read-judgment/






form of government from Britain, there are still a few differences in the

governments’ powers and limitations. The most fundamental difference

is that the power of the British Parliament is unrestrained or

unfettered, whereas the power of Indian Parliament is controlled, to an

extent, by the Constitution – primarily because of the presence of a

written Constitution in India. The Indian Parliament has to function

within the constraints of the Constitution, from which its legislative

powers emanate. The British Parliament can legislate upon any subject,

as opposed to the Indian Parliament, which can legislate only upon

matters mentioned in the Union List or the Concurrent List (or

residuary matters), as specified in Article 246 of the Constitution of

India.

While bringing in a contrast between British Parliament and Indian

Parliament, Dicey had called the former sovereign, and the latter

subordinate or non-sovereign. In the absence of a written constitution to

guide the courts in identifying an Act of Parliament, even the definition

of an Act of Parliament is primarily a matter of common law in the

United Kingdom.50

After analysing the situation in the United Kingdom and in India, it has

been witnessed that there is a similar provision warranting

parliamentary privileges, but in India, there is a special provision which

relates specifically to the courts’ jurisdiction to enquire into

parliamentary proceedings.

Another contentious point is whether the courts can intervene in the

functioning of the Speaker to administer oath to a member on the

grounds that he has wrongfully refused to administer oath to a member.

In the United Kingdom, it was observed that they have answered in

negative by the reasoning that taking or administering oath to a

member is part and parcel of the internal proceedings of the House.51

50 Basu, supra note 24, at 9043. 51 Anand v. Ram Sahay, AIR 1952 MB 31, at 44.



On the other hand, in India, it is considered a condition precedent to the

business.52

In the United States, the scenario is not clear.53 Generally, the Journals

of the Houses cannot be referred to invalidate an Act of Congress on the

ground of defect in procedure. But the Courts can interfere where some

express constitutional provision has been violated. For example, when a

revenue matter has been decided without taking the House of

Representative into confidence,54 or when a bill has been passed without

special majority, as required by the Constitution.55

In Pakistan, Article 69 of the Constitution mentions the same principle.

Justice Fazal Karim, while commenting on the same, said that along

with the ground of unconstitutionality and illegality, any material

irregularity also forms the subject matter of judicial review.56

In the case of Raja Ram Pal,57 the legal position in other countries was

also discussed. In Australia, the provisions relating to parliamentary

privileges under their Constitution are similar to the Constitution of

India. They rely on House of Commons, being a Commonwealth country.

Considering the position in Canada, it was laid down that,

Judiciary exercised the power particularly when issues

involved the rights of third party. According to Courts, their

role was to interpret the law of Parliament and to apply it.

Holding the test of ‘necessity’ for privilege as ‘jurisdictional

test’, the learned Judge stated; “The test of necessity is not

applied as a standard for judging the content of a claimed

privilege, but for the purpose of determining the necessary

sphere of exclusive or absolute ‘parliamentary’ or

‘legislative’ jurisdiction. If a matter falls within this

52 Cf. Ram Dubey v. Govt. of M.B., AIR 1952 MB 57, at 74. 53 Basu, supra note 24, at 9044. 54 Hubbard v. Lawe, (1916) 226 Neb 135. 55 U.S. v. Smith, (1932) 286 US 6. 56 JUSTICE (R) FAZAL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION 203 (Pakistan Law

House 2006); Basu, supra note 24, at 9059. 57 Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184.



necessary sphere of matters without which the dignity and

efficiency of the House cannot be upheld, courts will not

inquire into questions concerning such privilege. All such

questions will instead fall to the exclusive jurisdiction of the

legislative body.58

IV. CONCLUSION

The issue of parliamentary privileges places the judiciary and the

legislature at loggerheads. On one hand, the Parliament claims absolute

sovereignty in the matter of its privileges. On the other hand, the

judiciary, as the custodian of the Constitution, does not admit any

restraint on its power of judicial review. The judiciary admits to the fact

that the Parliament is immune from its jurisdiction with regard to its

internal matters, which itself is one of the necessary privileges of the

Parliament. Though the Court has accepted this position in theory, in

practice, on various occasions, the judiciary has extended its

adjudicatory powers to the privileges of the Parliament and the State

Legislatures. The basic objective of the constitutional scheme was to

ensure that each of the Constitutional organs function within their

respective assigned sphere. A careful analysis of Article 122 highlights

the basic principle that each House is the master of its procedure and

conduct of business, and thus, it can make rules on its own for regulating

procedure. No outside authority can interfere with its working. A court

cannot restrain proceedings in a sovereign legislature by the way of

injunction but can do so only on the grounds of unconstitutionality. The

solution to this conflict lies in harmonising the relationship between the

two highest organs of the democracy, and proper codifying of the

privileges to remove vague interpretations.

58 Id.



EVOLUTION OF THE PRESIDENT’S DISCRETIONARY

POWERS AND HIS ROLE OF A NOMINAL HEAD

Varisha Sharma†

ABSTRACT

The Parliamentary form of democracy in India has

many pillars which eases the functioning of the

system. However, the position and the powers of the

President have been the major issues of contention

since the inception of the Constitution of India. The

central topic of this discussion is the discretionary

powers of the President in India. The paper will be

tracing the constitutional change in the nature of

the President’s discretionary powers by the way of

provisions, practice, judicial interpretation and

political context.

The paper primarily aims to argue that the post of

President was aimed to be a nominal one but has

acquired an active role with more space to exercise

his jurisdiction with the changing political and

constitutional set up. In order to understand and

contextualise this, it is pertinent to view the

President’s position and the essence of making him

a titular head. The landmark changes were brought

about by the 44th Amendment of the Constitution,

and in furtherance, there have been changes in the

party politics from single party dominance to

multiparty system, and a lack of clear majority has

empowered the President in an implicit manner.

† 5th year law student at O.P. Jindal Global University, Sonepat. The author may be

reached at [email protected].





I. INTERPLAY OF PARLIAMENTARY FORM OF

DEMOCRACY, PRESIDENT AND THE CONSTITUTIONAL

ASSEMBLY DEBATES

The installation of the parliamentary form of democracy in the country

was aimed at giving the Prime Minister the real powers as he would be

the Head of the Government, with the decision-making agency lying

with the Parliament. The essence of this installation can be understood

by looking at some of the Constituent Assembly discussions. It is

important to deduce the spirit as the explicit provisions of the

Constitution of India do not give many stated indications with respect

to the President’s discretionary powers. As stated by Nehru: “Power

really resided in the Ministry and in the Legislature and not in the

President. At the same time, we did not want to make the President just

a mere figurehead like the French President. We did not give him any

real power, but we made his position of authority and dignity.”1

Ambedkar also reiterated the same stance by stating: “He has no

discretion and no powers of administration and he occupies the same

position as that of King under the English Constitution.”2

The aforementioned words of both the leaders are indicative of the fact

that the role of the President, as envisaged by the Constitution makers,

was not that of an activist President, but a passive one acting on the aid

and advice of the Council of Ministers, as provided in Article 74 of the

Constitution. The question then arises whether the intention of making

President the titular head was only contextual, and the lack of any

explicit provisions in terms of his exercise of discretion or otherwise was

an attempt to allow the circumstances to determine his or her authority.

1 Constituent Assembly Debates (Proceedings) – VII, CONSTITUENT ASSEMBLY

DEBATES 337; Constituent Assembly Debates (Proceedings) – IV, CONSTITUENT

ASSEMBLY DEBATES 12, 909. 2 Constituent Assembly Debates (Proceedings) – VII, CONSTITUENT ASSEMBLY

DEBATES 1036, 724.



Irrespective of the intent, the fact remains that President’s position has

undergone a drastic change since the installation of the parliamentary

form of democracy, and moved away from the originally envisioned role.

II. PRE 1976 PERIOD- 42ND AMENDMENT, JUDICIAL

DECISIONS, MARGINAL DISCRETIONARY POWERS

The President was supposed to act on the aid and advice of the Council

of Ministers, according to Article 743 of the Constitution. He was not

expected to use his individual judgment. The Parliament had the sole

authority to take decisions on policy matters. However, it was known

that there will be circumstances where the President will need to

exercise some discretion. In the view of the abovementioned fact, he was

provided with marginal discretionary powers. These included the right

to summon the House, to invite a new leader to prove majority in the

event of the existing Government losing majority. However, none of

these powers really provided the President with any active authority.4

The entire objective would have been defeated as the President would

have exercised parallel powers by taking decisions contrary to the

Parliament, giving rise to a situation of constitutional crisis.

The pre-existing stand regarding the position of the President was only

reaffirmed by the 42nd Constitutional Amendment.5 There wasn’t any

substantial change in the position by the virtue of this amendment.

Hence, any further elaboration on this aspect has been avoided for the

sake of brevity.

The judiciary has also upheld the same view, which is clearly visible in

its judgments. It was held in Bijoya Cottonmills v. State of West Bengal6

that, under Article 53, the decisions are taken in the name of the

President, but he cannot exercise the powers personally – only at the

3 Constitution of India, 1950 4 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7th ed, Lexis Nexis 2014). 5 Id. 6 Bijoya Cottonmills v. State of West Bengal, 1967 SCR (2) 406.



direction of the Council of Ministers. Personal satisfaction of the

President is not needed in every case.

In this phase, we clearly see that the role of the President was nominal.

Every institution or stakeholder tried to literally stick to the fact that

the President must not exercise discretion, which would make him

active in nature. This was contrary to the structural constitutionalism

approach, which aims to see the Constitution in its entirety.7

However, this approach was more inclined towards keeping the essence

of Article 74 alive, along with the elements of parliamentary democracy,

rather than expressing the ideals of the living Constitution. One of the

instances which indicate the ignorance in giving effect to Constitution is

that Article 60 provides for oath to be taken by the President, which

states that, “He will to the best of his ability, preserve, protect and defend

the constitution.” In the wake of ensuring his titular position, there was

no consideration of a situation where party politics might lead to

constitutional crisis, and the need for an activist President may arise.

III. INSTANCES DENOTING THE NEED TO HAVE MORE DISCRETION

During the installation of the President, it was expected that the

President would act on the lines of the British monarch, that is, as the

Constitutional Head. There was a conflict between Rajendra Prasad (the

first President of India) and Jawaharlal Nehru (the first Prime Minister

of India), as the former wanted to act on his own accord while rejecting

or accepting Bills. However, Nehru and the other important luminaries

pointed out that the Constitution provides for the President to act on the

aid and advice of Council of Ministers. This entire incident gave the

President a dual identity of being both the voice of the government and

the head of constitutional propriety. However, he ignited the debate as

to whether, with changing circumstances, it was more important to stick

7 JEFFREY GOLDSWORTHY, INTERPRETING CONSTITUTIONS (1st ed., Oxford University

Press 2008).



to the basic structure of the Constitution or give effect to a more

presidential form of government.8

The political scenario has undergone a peculiar evolution. The one-party

Congress dominance post-independence gave a freeway to the Central

Government, with little or no space for the practice of any presidential

discretion. The Congress often misused the provisions of the President’s

Rule to derail a non-Congress regional government. The diversity of this

nation was not ready to be engulfed into a one-dimensional and single

party dominance. With various other parties with diverging ideologies

coming to the fore, the politics of the country changed for good after

1967, when there were multiple parties at state level, and even the

Central Government comprised many parties.9

This marked the beginning of the era of the coalition governance, which

empowered the President to act as the mediator when conflicts arose

between the numerous and chaotic players in the political game. The

role of being a constitutional guardian had become more important and

relevant as there were increased chances of constitutional violation for

furthering one party’s agenda.

There were three situations faced by various Presidents, which were not

covered by any explicit directions within the Constitution, thereby

allowing them to use their own individual judgement. This was a

turning point, in the sense that, for the first time, the activist role which

was so highly opposed, was becoming a reality, owing to the changing

political circumstances.

President Venkatarama and President Sharma faced hung Parliaments.

The former laid down the precedent of approaching the largest party to

form the Government, and then to prove confidence in the Parliament

within 30 days. President Sharma stuck to the same, but was impartial

and asked the Governors to see the provisions before declaring

emergency in the states. President Narayan changed this precedent as

8 ATUL KOHLI, THE SUCCESS OF INDIA'S DEMOCRACY (1st ed., Princeton University

Press 2001). 9 MAHENDRA PAL SINGH, V.N. SHUKLA'S CONSTITUTION OF INDIA.



he was caught in the controversy of having a pre-poll alliance consisting

of 22 parties with the largest majority, and a single party with second

largest majority. Hence, who was he to invite for forming the

Government, especially since there was no precedent set for the same?10

The so-called marginalized discretion was no more marginal in nature,

as the political circumstances needed the President to use more

discretion.

IV. DISCRETIONARY POWERS IN THE STATUS QUO AND THE 44TH

AMENDMENT

The 42nd Amendment passed in the wake of the Emergency further

restricted the authority of the President, which made him succumb to

the pressures of the Government.11 However, the 44th Amendment

brought about a change which is known as the Pocket Veto. The

amendment added a new proviso to Article 74(1) of the Constitution,

which allowed the President to ask the Council to reconsider a Bill. It

further added to Article 74(2) of the Constitution that the President

cannot be questioned in any court of law for the furtherance of any such

advice. This, however, did not apply to Money Bills.12

The right to send a Bill for reconsideration is a very empowering right,

in the sense that a Bill being sent for re-evaluation by a dignified figure

such as the President makes it a highly influential power. For instance,

the Gujral Government recommended the imposition of President’s Rule

in Uttar Pradesh in 1997, but the President sent it back because the UP

government had just won the vote of confidence. This matter was not

pursued further.13

10 Kohli, supra note 8. 11 Jain, supra note 4. 12 S. Dam, Executive, in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 307–

329 (S. Choudhry, M. Khosla & P.B. Mehta eds., Oxford University Press, New Delhi

2016). 13 Jain, supra note 4.



The fact that the decision was sent back for reconsideration by a neutral

political figure goes on to show the hidden political motive which was

aimed to be achieved in the garb of the President’s Rule. Hence, even

though it is legally not binding, but morally and as a matter of policy, it

gives an essential power to the President to put forth his opinion.

The other discretionary powers that the President has in the status quo

are as follows:

a. Suspensive Veto

After the 44th amendment, the President has the right to delay a Bill

being passed by sending it for reconsideration. This power not only

delays the Bill, but also proves to be a big ethical hurdle. The

President is the most the neutral person in the political scheme of

the country, and his intervention testifies to the loopholes or the

vendetta behind the Bill. It exposes the Government and its

intentions. People have an opportunity to question the Bill as well as

the actions of the Parliament. Hence, it can be said that even though

it’s not a legally binding power has a major moral backing.

b. Pocket Veto

It is a very important implicit power in the hands of the President.

It helps the President keep a Bill pending by neither forwarding it

for reconsideration, nor ratifying nor rejecting it. It is nowhere

mentioned in the provisions, but the lack of specification regarding

the time period for sending the Bill back for reconsideration allows

the President to keep it pending for an indefinite period.14

This power could stultify the entire process of passing a Bill, against

the wishes of the Parliament. If we refer back to the Constituent

Assembly debates, it was gathered that an activist President, who

has been indirectly elected, should not have any powers to counter

14 U.C. JAIN & J. NAIR, POWERS OF PRESIDENT AND CABINET (Pointer Publishers,

Jaipur 2000).



the Parliament’s decision. However, the pocket veto is a clear

deviation from this vision.

c. Right to Seek Information from the Prime Minister

The President has the right to seek any information from the Prime

Minister regarding the administration or the affairs of the country

and any proposed legislations under Article 78(a) and (b). the

President has full discretion in exercising this provision, without any

external interference. He cannot be denied this right. It relates back

to the point that Nehru mentioned during the Constituent Assembly

debates – that the position of the President is of dignity. He is clearly

an important figure who has to be informed of all the happenings of

such nature in the country.

d. Power to Summon the House

Under Article 85 of the Constitution, the President can summon the

House to meet at any specified time and place to make sure that six

months do not elapse since last sitting of the House.15 This has been

a discretionary power that the President has always possessed in

order to maintain the legitimate procedure under the Constitution.

e. Power to Invite a Leader for forming Government, if No Clear

Majority

He has the power to invite a leader from any party or coalition to

form the Government, if there is no clear majority. The said

candidate must then prove majority and confidence in the

Parliament within a specified period of time.16

Hence, the provision is of no utility if there is clear majority. But, in

the case of the coalition politics, which is the ground reality, this

power makes the President a very important player in the entire

15 Singh, supra note 9. 16 A.G, NOORANI CONSTITUTIONAL QUESTIONS IN INDIA: THE PRESIDENT, PARLIAMENT

AND THE STATES (Oxford University Press, New Delhi 2000).



scheme of governance. Political circumstances can, therefore,

empower him to appoint a leader he thinks fit, who would then be

taking all the important decisions, once he clears the floor test.

f. Power to Declare No Confidence Motion

The House can be dissolved if the Council of Ministers loses majority.

The President would not be bound by the advice of the Council if they

have lost majority. The leverage to the President even in this case is

situational, because if the Council of Ministers lose the majority

because of their own conduct, then it is easier to exercise this right.

g. Increase in Powers in case of a Caretaker Government

A caretaker government is not a constitutional term, but it is used to

refer to the government appointed in case of the elected party cannot

form a government, or loses confidence, and fresh elections are still

to take place.17 This Government takes care of the day-to-day affairs

of the country. The idea is that it should not possess the powers of

taking important policy decisions, other than in case of exceptional

situations. This allows the President to become the guardian of the

entire government and its conduct. For example, the Vajpayee

Government in 1997 was a caretaker government, and had to throw

out Kargil intruders because it was an urgent decision, which could

not have been left pending till fresh elections took place.

In the case of Rameshwar Prasad v. Union of India,18 the Supreme

Court affirmed that the satisfaction of the President is important for

the dissolution of the legislative assembly. The dissolution was set

aside because the President was wrongly advised by the Council of

ministers. Hence, the judiciary also holds the view that the President

is required to use his own rationality, and is not supposed to act on

any advice of Council of Ministers.

17 Kohli, supra note 8. 18 Rameshwar Prasad v Union of India, (2006) 2 SCC 1.



V. EVOLVED DISCRETIONARY POWERS: MOVE TOWARDS

HYBRIDITY?

The changing trend can clearly be traced from the initial passivism

towards giving the President discretionary powers to allotting much

more space for discretion and activism in the status quo. We have come

a long way in ensuring that our constitutional fabric is protected even

in the times of political crises, by empowering the President to take calls

in such situations.

However, the reformed discretionary powers are away from elements of

parliamentary form of democracy, which advocates making the central

executive merely a nominal head. But it is noteworthy that it’s not a

major enough deviation as giving the President absolute or independent

powers on the lines of presidential powers. It can, however, be argued

that a political system where the President no more remains a nominal

head, but becomes an activist President is a sort of hybrid of the aspects

of parliamentary and presidential form of governance, which is

dominated by the parliamentary system. The fact still remains that this

change has not been actualised on paper, but is merely contextual,

resulting from the nature of politics in the country. It is not static, and

will keep changing as the political scenario of the nation keeps evolving

and showing various forms.

VI. CONLUSION AND ANALYSIS

The position and exercise of the President’s discretion is contingent upon

the political circumstances of the country. If there is a clear majority,

then the President does not have much scope of using his discretion.

However, as held in the case of Dinesh Chandra v. Chaudhary Charan

Singh,19 if there are multiple loose-knit parties, then the discretion of

19 Dinesh Chandra v Chaudhary Charan Singh, AIR 1980 Del 114.



the President in the appointment of the Prime Minister and the

dissolution of the Lok Sabha may become crucial. Hence, it can be

deduced that the more the number of players in the political game, the

more chaotic it becomes, and any clear decision-making is obstructed.

The President then steps in to do what he has taken an oath for, i.e. to

protect the Constitution of the country. Hence, the President is not a

mere puppet figure who has no right or duty to exercise his discretion.

To sum it up, the President is largely a nominal figure on paper, as

envisaged by the Constitution makers. But, in practice, the diversity and

complexity of Indian politics has made President much more than that.

He ensures that in the political chaos, the supreme document does not

lose its relevance. The changes in the political setup might render him

more powerful and powerless at times. But nobody can negate his power

to intervene in the times of constitutional crisis in order to ensure that

the supremacy of the constitution is not lost in political competition.



CONSTITUTIONAL VALIDITY OF THE CONSTITUTION (ONE

HUNDRED AND THIRD AMENDMENT) ACT, 2019

Abhishek Bhatt & Tarun Sharma †

ABSTRACT

The Constitution (One Hundred and Third

Amendment) Act, 2019 provides for 10%

reservations to the economically weaker sections of

the society, which is in addition to the existing

reservation for the socially and educationally

backward classes. The question arises regarding

the constitutionality of 103rd Amendment and

whether it is a violation of the right to equality,

which forms a part of the basic structure of the

Constitution of India.1 Originally, the Constitution

provided for reservation under Articles 15 and 16,

for the socially and educationally backward classes.

The Constitution does not provide reservation on

the basis of economic criteria, as the objective

behind reservation does not support the argument

that economic status should be a reason for

providing reservation quota.

This research deals with the constitutionality of the

103rd Amendment, providing 10% reservation to

the economically weaker section, whether it is in

tandem with the right to equality, and whether it

is actually necessary to provide reservation to those

who are not socially backward but economically

weak. The Mandal Commission case,2 where it was

specifically laid down that the reservation cannot

be more than 50%, and that economic criteria

should not be the only ground for reservation.

† The authors are 3rd year B.A. LL.B. students at University of Petroleum & Energy

Studies, Dehradun. They may be reached at [email protected] and

[email protected], respectively. 1 M. Nagaraj v. Union of India, AIR 2007 SC 71. 2 Indra Sawhney v. Union of India, AIR 1993 SC 477.







I. INTRODUCTION

The Constitution (One Hundred and Third Amendment) Act, 2019 came

into effect on January 14, 2019, after the President of India, Mr. Ram

Nath Kovind, gave his assent to the Bill passed by the Parliament. The

Amendment introduces reservation on the basis of economic criteria in

the Constitution of India. It provides for a 10% reservation for the

Economically Weaker Section (“EWS”), in addition to the existing

reservations, i.e. for SCs, STs and OBCs. The 103rd Amendment brought

about a change in two fundamental rights, viz. Articles 15 and 16.3 The

aim of the amendment is to fulfil the commitment of the Directive

Principles of State Policy under Article 46 of the Constitution, which

talks about the promotion of educational and economic interest of the

weaker sections of the society.4

This Amendment targets the general category and these are the

prerequisites:5

a. The income of the family should be less than INR 8 lakhs per annum.

b. The farm land belonging to the family should be of less than 5 acres.

c. The family’s residential house should be of less than 1000 sq. ft.

d. The residential plot belonging to the family should be of less than

100 yards in a notified municipality.

e. If the area is not notified, then the residential plot should be of less

than 200 yards.

The Amendment has added two new clauses in Article 15 and 16 of the

Constitution, which are:

3 Shruti Rajagopalan, Why Amending an Inconvenient Constitution is a Political

Move, LIVE MINT (Jan. 21, 2019, 10:36 PM), https://www.livemint.com/opinion/online-

views/opinion-why-amending-an-inconvenient-constitution-is-a-political-move-

1548087321056.html. 4 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1353-70 (7th ed., Lexis Nexis 2014). 5 Mehal Jain, Constitutional 103rd Amendment Act, LIVE LAW (Jan. 27, 2019, 7:28

PM), https://www.livelaw.in/top-stories/lawyers-economic-reservation-sc-142291.

https://www.livemint.com/opinion/online-views/opinion-why-amending-an-inconvenient-constitution-is-a-political-move-1548087321056.html






https://www.livelaw.in/top-stories/lawyers-economic-reservation-sc-142291

https://www.livelaw.in/top-stories/lawyers-economic-reservation-sc-142291



a. Article 15(6) provides for reservations to the EWS for admission to

educational institutions, including private educational institutions,

whether aided or unaided by the State, other than the minority

educational institutions referred to in Article 30(1). The amendment

aims to provide reservation to those who do not come in the purview

of Articles 15(5) and 15(4).

b. Article 16(6) provides for reservations to people from the EWS in

government appointments.

The reservation is given on the basis of economic weakness, which can

be decided on the basis of family income and other indicators of economic

disadvantage.6

II. HISTORICAL BACKGROUND

Reservation is undertaken to address the historic oppression,

discrimination and unequal treatment faced by some of the

communities, and to help these communities achieve a status of

equality. The Constitution prohibits untouchability, and obligates the

state to make special provisions for the betterment of the SCs and STs.

The primary objective of the reservation system in India is to enhance

the social and educational status of the underprivileged communities,

since the efforts for the betterment of the untouchables and the

depressed classes began in various parts of British India during the

nineteenth century itself.

After the independence of India, Dr. B.R. Ambedkar, the spokesperson

for India’s untouchables and an architect of the Indian Constitution,

made provisions which abolished untouchability and provided social and

economic benefit for the Scheduled Castes and Scheduled Tribes. The

state is also authorized by the Constitution itself to make special

6 Shubham Barkar, Economic Reservation in India: Highlights and Analysis,

KHURANA AND KHURANA (Jan. 17, 2019, 9:30 AM), http://www.mondaq.com/.

http://www.mondaq.com/

http://www.mondaq.com/



provisions for the advancement for any socially and educationally

backward classes of citizens.7

1. PRE-INDEPENDENCE

In 1882, the Hunter Commission was appointed, and Mahatma Jyotirao

Phule made the demand of compulsory and free education for all, with

proportionate reservation in government jobs. The Maharaja of

Kolhapur introduced reservations for the non-Brahmins and the other

backward classes, much of which came into force in 1902. He had

provided free education to all and opened several hostels for the

students. He ensured that whosoever is educated were suitably

employed, by creating 50% reservation for the backward classes.

At the time of British Raj, the Government of India Act, 1909 was

introduced, in which elements of reservation can be found, and there

were many other measures put in place prior to independence. Then, in

the Round Table Conference of 1932, where the Prime Minister of

Britain, Ramsay MacDonald proposed the Communal Award, which

provides separate representation for the Muslims, Sikhs, Indian

Christians, Anglo-Indians, and Europeans.

2. POST-INDEPENDENCE

After the independence of India, some major initiatives in favour of the

SCs, STs and OBCs have been initiated under the Indian Constitution.

In 1953, the Kalelkar Commission was appointed to assess the situation

of the socially and educationally backward classes. Thereafter, in 1979,

the Mandal Commission was established to assess the situation of the

socially and educationally backward classes. In 1982, it was decided that

15% and 7.5% of vacancies in the public sector and the government-

7 Robert Fullinwider, Affirmative Action, STANFORD ENCYCLOPEDIA OF PHILOSOPHY,

2008.



aided educational institutions should be specifically reserved for the SC

and ST candidates, respectively.

In 1978, a significant change began when the Mandal Commission was

established to assess the situation of the socially and educationally

backward classes. In 1980, the Commission recommended a reservation

quota of 27% for the OBCs, in respect of educational institutions and

public sector bodies. In the same year, the Commission submitted its

report, and recommended changes to the existing quotas that increased

from 22.5% to 49.5%. Other similar attempts have been made in the past

when, for instance, in 1991, the P.V. Narasimha Rao Government had

proposed a 10% reservation for the poor among the forward castes.

Further, in 2003, the Sachar Committee was established, which

prepared a report on the economic and educational status of the Muslim

community of India.8

III. PHILOSOPHY BEHIND THE RESERVATION AND

JURISPRUDENTIAL ASPECT

The whole idea of reservation indicates the principle of equality, which

can be traced back to the natural law doctrine. The concept of

distributive justice propounded by Aristotle provided for equal

treatment to all who are equal before the law. This indicates that legal

inequality between men and women, the blacks and the whites, the

upper caste and the lower caste should not be present in a democracy,

yet we cannot find a society that has completely eradicated these social

inequalities.9

John Rawls also supports the concept of social justice. His second

principle is known as the difference principle, which states that a policy

is just if it provides benefits for the least advantaged group, and if the

access to any privileged position is not blocked by discrimination on the

8 Puja Mondal, Reservation System in India (Jan. 21, 2019, 7:15 PM),

http://www.yourArticlelibrary.com/essay/mandal-commission-reservation-for-

backward-class/35168. 9 W. FRIEDMAN, LEGAL THEORY 416 (5th ed. 2013).

http://www.yourarticlelibrary.com/essay/mandal-commission-reservation-for-backward-class/35168






basis of relevant criteria. Rawls’ theory of justice completely supports

the policy of affirmative action,10 but he does not give an extent to which

this principle of justice would hold well. According to Rawls, each person

possesses an inviolability founded on justice that even the welfare of the

society as a whole cannot override.11

According to Herbert Spencer, an individual adopts from his society

something which is hereditary in nature. An individual inherits the

ideas of morality, obligations, rights and justice; therefore, different

sociological groups evolve differently and so do their laws.12

Discrimination, whether due to caste, creed or race, not only hampers

the mobility of a particular society, but also leads to its degeneration.

Just because of inequality, a section of the society remains

unrepresented, leading to all the benefits of the society being enjoyed

only by the represented castes.13

Reservation wishes to break this monopoly, which was earlier in the

hands of the upper castes in the Indian society. Reservation in India is

the affirmative action by which a percentage of seats are reserved in the

government services, educational institutions, the public sector units,

etc., except in the religious/linguistic minority educational institutions,

for the socially and educationally backward classes, i.e. the SCs, STs and

OBCs, who are inadequately represented in these services and

institutions. At the time of making of the Constitution, the framers of

the Constitution believed that SCs and the STs were historically

oppressed and denied respect and equal opportunity in the society, just

because of the prevalent caste system. Race, religion, ethnicity, national

or social origin have been the bases of discrimination since the pre-

independence era under the diverse social, economic and political

10 Dr. Jan Garrett, Rawls Mature Theory of Social Justice (August 24, 2005). 11 KLAUS R SCHERER, JUSTICE: INTERDISCIPLINARY PERSPECTIVES 18 (Cambridge

University Press 2009). 12 NK JAYAKUMAR, LECTURES IN JURISPRUDENCE 78 (2nd ed. 2010). 13 Quleen Kaur Bijral, Affirmative Action: The system of reservation and quota in

India, THE LOGICAL INDIAN (Jan. 17, 2019, 9:30 PM),

http://thelogicalindian.com/story-feed/awareness/affirmative-actionthe-system-of-

reservations-and-quotas-in-india/.

http://thelogicalindian.com/story-feed/awareness/affirmative-actionthe-system-of-reservations-and-quotas-in-india/






systems, which led to imbalance in terms of access to capital assets,

employment, education, political participation and other spheres. For

that matter, it is necessary to practice reservation, affirmative action,

positive action or equal opportunity for these discriminated groups.

IV. THE MANDAL COMMISSION’S RECOMMENDATIONS

The Mandal Commission was established in India in 1979 by the Janata

Party government under the leadership of Prime Minister Morarji

Desai. The aim of the Commission was to identify the socially and

educationally backward classes in India.14 In 1980, according to the

report of the Commission, the reserved quotas in the field of government

jobs and education were increased from 22.5% to 49.5%.15

The following were the terms of reference of the Mandal Commission:16

a. To determine the criteria for defining the socially and educationally

backward classes.

b. To recommend the steps for the betterment of the socially and

educationally backward classes.

c. To determine the desirability of making provisions for reservation in

favour of the backward classes, which are not adequately

represented in the services of both the Central and State

governments.

d. To present a report regarding the societal conditions, and making

such recommendations as they think proper. The Commission

observed that caste was also a class of people.

The Commission recommended the following:17

14 Arkoday Roy, Creamy Layer: The Mandal Commission View- The Present Day

Exclusion, LEGAL SERVICES INDIA (Jan. 17, 2019, 11:30 AM),

http://www.legalservicesindia.com/Article/Article/creamy-layer-the-

mandalcommission-view-535-1.html. 15 LALITA SHARMA, SOCIAL MOVEMENTS IN INDIA 39 (1st ed. 2014). 16 Mondal, supra note 8. 17 Id.

http://www.legalservicesindia.com/article/article/creamy-layer-the-mandalcommission-view-535-1.html






a. Those who do not qualify on the basis of merit, 27% of the jobs is

reserved for them.

b. The 27% reservation be made for promotions at all levels.

c. The unfilled reserved quota be carried forward for a period of three

years, and de-reserved thereafter.

d. The age relaxation be the same for the backward classes as it is in

the case of the SCs and the STs.

e. The roster system, which was made for the SCs and STs, be applied

similarly on the backward classes.

f. The reservation should be made applicable to all public banks, public

sector undertakings, and private undertakings receiving grants from

the Central and State governments, as well as similarly placed

universities and colleges.

g. The Government should make legal provisions, which are necessary

for the implementation of these recommendations. The Commission

recommended the implementation of an intensive and time-bound

programme for the education of the backward classes, and open

residential schools for the backward class students.

The 27% reservation was, thus, suggested for seats in educational

institutions as well as in jobs. The suggestions regarding the upliftment

of backward classes were also made by the Commission to bring about

structural changes in Indian society.

V. ECONOMIC CRITERIA AS A BASIS OF CLASSIFICATION

FOR SOCIALLY AND EDUCATIONALLY BACKWARD

CLASSES

The application of economic criteria to determine social and educational

backwardness has often been put up for the scrutiny of the Indian courts,

starting from the case of Kumari Jayashree v. State of Kerala.18 The

18 Kumari Jayashree v. State of Kerala, AIR 1976 SC 2381.



Apex Court held that while caste and economic criteria individually

cannot be the sole basis of classification, together they were valid

criteria for determining social and educational backwardness.19 In the

words of the Court:

Social backwardness is in the ultimate analysis the result

of poverty to a large extent. Social backwardness which

results from poverty is likely to be aggravated by

considerations of their caste. This shows the relevance of

both caste and poverty in determining factor of social

backwardness. Poverty is relevant in the context of social

backwardness. Social backwardness is the result of poverty

to a very large extent. Caste and poverty are both relevant

for determining the backwardness. But neither caste alone

nor poverty alone will be the determining tests.

Article 15(4) does not grant the SCs, STs and the other socially and

educationally backward classes the right to reservation. It is merely an

enabling provision, and the state has the discretion to provide for

reservations. A writ filed by one of the member of the above classes,

praying the court to direct the State to provide for reservation cannot be

sustained.20 The judiciary has repeatedly taken the view that Article

15(4) does not provide a right to reservation and provides that the

reservation be left to the discretion of the State.

In Janaki Prasad Parimoo v. State of Jammu and Kashmir, it was

reiterated that economic criteria could not be the singular criteria to

determine backwardness, because in a country like India, most of the

people are poor, especially in the rural areas. Following this logic, a class

of priests were held not to be socially and educationally backward.

Moreover, farmers who were classified as backward based on their land

holdings, were held to be not so. The Supreme Court has repeatedly said

19 ANIRUDH KRISHNAN & HARINI SUDERSHAN, LAW OF RESERVATION AND ANTI-

DISCRIMINATION 278 (1st ed. Lexis Nexis 2008). 20 Anil v. Dean, Medical College, Nagpur, AIR 1985 Bom 153; Dr. N M Prasad v.

Director, Sri Jayadeva Institute of Cardiology, AIR 1994 Kant 309.



that if reservations were made only on the ground of economic

considerations, an untenable situation would arise due to the fact that

even in sections of the society which are recognised as socially and

educationally advanced, there are large pockets of poverty, and such

people would end up benefitting from the reservation.21

The judgment given in K.C. Vasanth Kumar v. State of Karnataka22

discussed the economic criteria for determining social and educational

backwardness in detail. Desaii, J., for the first time, took the view that

economic consideration should be the sole criteria for determining social

backwardness, and emphasised that the benefits of the caste-based

reservation are enjoyed only by the economically well-off sections of the

society. Chinappa Reddy, J. also gave great importance to the economic

criteria. While analyzing backwardness using Max Weber’s theory, he

observed that from the angle of class, status and power, poverty was one

of the prime causes of the problem. He observed: “The lower the caste the

poorer its members. The poorer the members of a caste, the lower the

caste.”23 He, however, did not disregard caste as a criterion for deciding

backwardness. Poverty, caste, occupation and habitation were

considered by him to be the primary factors that ought to be considered

in order to classify a class as backward. He was of the thought that

poverty could not be the sole criterion for the following reasons:

a. In India, a majority of the forward castes were also poor, and these

people should no doubt be protected through other means, but not

through reservation.

b. It would be very difficult and would cause administrative headaches

to prove whether someone meets or does not meet the economic

criteria.

In Indra Sawhney v. Union of India,24 the view of Chinappa Reddy, J.

was appreciated by Jeevan Reddy, J. Thus, as for now, the position is

21 Krishnan & Sudershan, supra note 19, 279. 22 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. 23 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. 24 Indra Shawhney v. Union of India, AIR 1993 SC 477.



clear that economic criteria, just like caste, can be one of the criteria,

but cannot be the sole criterion. This was made clear in the Indra

Sawhney case, where the issue was regarding the reservation of 10% of

the posts in favour of the other economically backward sections, who are

not covered by any of the existing reservations. It was held that such

reservations would not fall within the ambit of Article 16(4) and would

violate Article 16(1). Relying on these dicta, many High Courts have

declared a system of reservation for the economically backward classes

as unconstitutional in various cases, such as Asha D. Bhatt v. Director

of Primary Education.25

Poverty is not an immutable characteristic such as race or sex, nor is it

stigmatic in the way caste is. It is possible to eradicate poverty with

appropriate policy changes. A sustainable and equitable economy needs

to be in place with redistribution of income and wealth.26 Hence, the

position seems clear, as interpreted by the learned judges of Supreme

Court and High Courts, that the intention of the framers of the

Constitution would not be met if reservation is given solely on the basis

of economic criteria.

VI. WHAT WOULD CONSTITUTE A SOCIALLY AND

EDUCATIONALLY BACKWARD CLASS?

In M.R. Balaji v. State of Mysore,27 the Supreme Court proclaimed that

backwardness would have to be both social and educational in nature.

The backwardness under Article 15(4) must be social or

educational, but it is both social and educational and this

takes us to the question as to how social and educational

backwardness has to be determined.

25 M.R. Balaji v. State of Mysore, AIR 2003 Guj. 197. 26 Indira Jaisingh, Why the 10% reservation could fail the constitutional test,

BLOOMBERG QUINT (Jan. 10 2019, 11:42 AM),

https://www.bloombergquint.com/opinion/reservation-why-the-10-quota-could-fail-

the-constitutional-test-by-indira-jaising#gs.hhMy2ztu. 27 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.



The next question was whether a classification based on caste alone

would be a valid test to determine social backwardness? Does class refer

to caste? Then, what would be educational backwardness? The Supreme

Court asserted that caste was definitely a relevant criterion in

determining social backwardness; however, it should not be the sole

criterion. A number of other facts also needed to be considered. These

factors included:

a. Poverty level, as the social backwardness arising due to poverty is

aggravated due to caste criterion;

b. Occupation and the societal inequality with respect to treatment of

professions;

c. Place of habitation, though it has a comparatively minor role to play.

Thus, it is clear that caste alone cannot be the sole criterion for

reservation, and it has to be accompanied by the other relevant factors,

as mentioned above. Thus, relying solely on one factor, i.e. poverty, for

providing reservation seems similarly unjustifiable and lacking in logic.

The Supreme Court has never denied that caste is one of the most

important factors for determining social and educational backwardness,

and deviating from that path to provide reservation to a caste which

enjoys a higher position on the social ladder is unjust for everyone.

It is an undeniable fact that a caste system exists in the Hindu culture

and society, and to determine the social backwardness of an individual,

we need to see his/her caste. This may not be the case in the other

religions, i.e. for Muslims or Christians or Jains, but it has to be seen

for the Hindus. The occupations of citizens may also contribute to make

classes of citizens socially backward. There are some occupations which

are treated as inferior, according to the conventional beliefs, and the

classes of citizens who follow these occupations may be considered

socially backward.28 Practicing as a priest is certainly not one of those

professions which are treated as inferior in comparison with other

28 Krishnan & Sudershan, supra note 19, 274.



professions; instead, it is considered a very holy and noble profession to

profess.

For once, the position was settled in Indra Sawhney v. Union of India,

where, with respect to Article 16(4), the Court was posed with the

question as to whether a caste-based classification would be valid for

determining socially backward classes. The Mandal Commission gave a

report, the implementation of which was questioned, and among the

many arguments was that caste could not be the basis of classification.

The contention was that a secular casteless society is a basic feature of

the Constitution, and this cannot be achieved if the caste-based

classification is permitted; the classification must be individual-based

and not caste-based. The legislature, without disturbing the existing

reservation for the SCs, STs, and OBCs, has somewhere given force to

these contentions from the Indra Sawhney case. However, the Supreme

Court rejected the contentions and analyzed the caste-class correlation

in great detail. The observations of the Court were that:

… caste is nothing but a social class a socially homogeneous

class. It is also an occupational grouping, with this

difference that its membership is hereditary. One is born

into it. Its membership is involuntary. Even if one ceases to

follow that occupation, still he remains and continues a

member of that group. To repeat, it is a socially and

occupationally homogeneous class. Endogamy is its main

characteristic. Its social status and standing depend upon

the nature of the occupation followed by it. Lower the

occupation; lower the social standing of the class in the

graded hierarchy. In rural India, occupation – caste nexus

is true even today. … For the purpose of marriage, death

and all other social functions it is his social class-the caste

that is relevant. ... As observed by Dr, Ambedkar, a caste is

at an enclosed class and it was mainly these classes the

Constituent assembly had in mind-though not exclusively

while enacting Article 16(4). Urbanization has to some

extent broken this caste occupation nexus but not wholly. …



In a rural context, of course, a member of barber caste

carrying on the occupation of washer men or vice versa

would indeed be a rarity. It is simply not done. There may

be exceptions here and there, but we are concerned with

generality of the scene and not with exceptions or

aberrations. Lowly occupation results not only in low social

position but also in poverty; it generates poverty. All the

decisions since Balaji speak of this ‘caste-occupation-

poverty’ nexus. The language and emphasis may vary but

the theme remains the same. We are not saying it ought to

be encouraged, it should not be. But any program designed

to eradicate this evil must recognize this ground reality and

attune its program accordingly. Merely burying our heads

in the sand Ostrich-like would not help.29

Providing 10% reservation to the economically weaker sections of the

general category, therefore, ignores the ground realities that Supreme

Court averred very beautifully in the Indra Sawhney judgment.

VII. WEAKER SECTION OF SOCIETY

The propounded reservation under the new Amendment provides a 10%

reservation for the economically weaker sections. So, the question arises

whether economically weaker section of the society is synonymous to the

concept of socially backward classes? The State provides for exemptions

and concessions for the weaker sections of the society in accessing

various social facilities. One such example is exemption in court fees for

the SCs, STs, minors etc. This list also includes persons belonging to the

economically weaker sections of society.

The opinion given by Chinappa Reddy, J. in the Indra Sawhney case is

somewhere relevant for this concept of economically weaker sections of

society. He opined that, in India, a majority of forward castes were also

poor, and these people should no doubt be protected through other

29 Indra Shawhney v. Union of India, AIR 1993 SC 477.



means. These other means are exemptions and concessions in accessing

public facilities and services of the government. To endeavour for the

betterment of the weaker sections of society is a basic tenet of a welfare

state, which the Indian Constitution promotes through the Directive

Principles of State Policies. Article 46 talks about the promotion of

educational and economic interests of the Scheduled Castes, the

Scheduled Tribes and the other weaker sections. The State shall

promote, with special care, the educational and economic interests of the

weaker sections of the people, and, in particular, of the Scheduled Castes

and the Scheduled Tribes, and shall protect them from social injustice

and all forms of exploitation. Applying the principles of noscitur a sociis

and ejusdem generis, the term other weaker sections of the society derives

its meaning from the terms used along with it. So, the weaker sections

need to be similar to the SCs and the STs, and the argument that the

poor people from the general category, which itself comprises the upper

castes, is similar to them doesn’t seem to be a valid argument.

VIII. EXTENT OF RESERVATION PERMISSIBLE UNDER

ARTICLE 15(4) AND 16(4)

Dr. Ambedkar, in his speech at the Constituent Assembly, made the

point that reservation should be “confined to a minority seats”.30 This

was not opposed by anybody else in the Assembly, leading to the

irrevocable conclusion that 50% ought to be maximum limit for

reservation. The Supreme Court has also accepted this as the limit. In

M.R. Balaji v. State of Mysore,31 the maximum capping for reservation

was discussed for the first time, wherein 68% of the seats were reserved

for the Scheduled Castes, Scheduled Tribes, and other backward classes.

The Supreme Court, in its decision, observed that it must not be ignored

that Article 15(4) is a special provision for the advancement of the SCs,

STs and backward classes; it is not a provision which is exclusive in

character, such that, in looking after the advancement of those classes,

30 Krishnan & Sudershan, supra note 19, 290. 31 M.R. Balaji v. State of Mysore, AIR 1963 SC 649.



the State would not be justified in ignoring the advancement of the rest

of the society. So, if a provision, which is in the nature of an exception,

completely excludes the rest of the society, it clearly is outside the scope

of Article 15(4).

It would be extremely unreasonable to assume that in enacting Article

15(4), the Parliament intended to provide advancements for the SCs,

STs and other backward classes, and the remaining citizens constituting

the rest of the society were to be completely ignored. The Court

concluded that 68% reservation is a fraud with regards to the

Constitution. This debate of capping was put to halt in the Indra

Sawhney case,32 where the Court held that Article 16(4) spoke of

adequate representation and not proportional representation, as given

in Articles 300 and 302 of the Constitution. A provision that was for the

betterment of certain sections of the society must also be reconciled with

the interest of the remaining citizens, and hence, a 50% limit would be

reasonable. It was agreed that this limit would cover reservation under

16(4), but would not apply to exemptions, concessions and relaxations,

if any, provided to the other backward class of citizens.

The Hon’ble Supreme Court, speaking through the Constitution Bench

in the case of M. Nagaraj v. Union of India, upheld the constitutional

validity of Article 16(4A) and the proviso to Article 335 in the following

words: “We reiterate that the ceiling limit of 50%, the concept of creamy

layer and the compelling reasons, namely, backwardness, inadequacy of

representation and overall administrative efficiency are all

constitutional requirements without which the structure of equality of

opportunity in Article 16 would collapse.” In paragraph 104, the Court

specifically states that “be it reservation or evaluation, excessiveness in

either would result in violation of the constitutional mandate.” Thus, the

50% ceiling limit of reservations has been engrafted as a part of the basic

structure of the Constitution.

32 Mondal, supra note 8.



IX. BASIC STRUCTURE AND RESERVATION

To know the relationship between the basic structure of the Constitution

and reservation, the most obvious case that needs to be discussed is

Kesavananda Bharati case,33 that is, the very first case which gave the

principle of basic structure to check the constitutional validity of any

constitutional amendment that the Parliament brings about. The

largest constitutional bench of thirteen judges was constituted for this

landmark case, and it clarified that the Parliament can amend the

fundamental rights, but cannot amend the basic structure of the

Constitution. The question of what constituted the basic structure was

answered through various decisions of Supreme Court subsequently.

However, there is no exhaustive definition that can define basic

structure. Whether the concept of equality is basic feature of

Constitution was, however, not clearly answered in the Kesavananda

Bharati case.

The first case to declare equality as a basic feature of the Constitution

was Indira Gandhi v. Raj Narain,34 also known as the Election case, and

the first time the Supreme Court brought aspects of the reservation

controversy within the domain of the basic structure doctrine was in

Indra Sawhney II.35 In Indra Sawhney II, the Supreme Court held that

the principle of equality enshrined in Article 14, of which Article 16(1)

is a facet, is a basic feature of the Constitution.36 The Court, in the

Nagraj case, provided for two tests to be applied while judging the basic

structure, namely, the width test and the identity test. The identity test

is based on the concept of constitutional identity, and any amendment

which destroys the identity of the Constitution would abrogate its basic

structure. With reference to equality, it is Articles 14, 15 and 16,

particularly Article 16(4), which constitute the basic structure.

33 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and

Anr., AIR 1973 SC 1461. 34 Indira Gandhi v. Raj Narain, AIR 1975 SC 865. 35 Indra Sawhney v. Union of India, AIR 2000 SC 498. 36 Krishnan & Sudershan, supra note 19, 657.



Therefore, while providing for reservation, the identity of these Articles

should not be disturbed.

1. THE EQUALITY TEST

Article 14 forbids class legislation, but does not forbid reasonable

classification for the purpose of legislation.37 Class legislation is

permissible if the classification on which it is based is rational and has

a nexus with the object sought to be achieved.38 According to the

principle of intelligible differentia, differential treatment violates Article

14 only when there is no reasonable basis. What is, however, necessary

is that there must be a substantial basis for making the classification,

and that there should be a nexus between the classification and the

object under consideration. In other words, there must be some rational

nexus between the basis of classification and the object intended to be

achieved.

The question that arises ia whether providing 10% reservation to the

economically weaker sections fulfils the tests of equality, i.e. reasonable

classification and intelligible differentia. The philosophy or the objective

behind giving reservation is to fill the gap which is based on the social

status, that has been created over the past centuries. Those who are

depressed historically because of the caste system or their social status

are eligible to get the reservation quota. Also, the intention of the

Constitution framers at the time of making of the Constitution was to

provide benefit of reservation only to socially and educationally

backward classes, and not to economically weaker sections. The current

10% reservation to the economically weaker sections is questionable on

the grounds that whether a person whose family’s gross income is up to

INR 8 lakh per annum can be called as economically weak person. For

instance, if the policy is implemented, another question is whether the

section of the society which ought to be benefitted from this reservation

37 Sakhawant Ali v. State of Orissa, AIR 1955 SC 166. 38 Ratnapoorva Devi v. State of Orissa, AIR 1964 SC 1195.



will get the benefit or the section earning above INR 4-5 lakhs per

annum will end up getting most of these reservations. Thus, this 10%

reservation fails the test of nexus of the law with the object sought to be

achieved.

X. ANALYSIS

The debate for reservation on an economic basis is not a new debate. It

traces its history back to the Indra Sawhney case, when similar

attempts were made by the P V Narasimha Rao government, by

proposing a 10% reservation for the poor among the forward castes, but

the Apex Court had struck down the law as unconstitutional. The

present government, instead of bringing an ordinary law, brought a

Constitutional Amendment Bill (the 124th Constitutional Amendment

Bill). Now, the Constitution stands amended, as none of the political

parties could have afforded to be known as anti-poor and anti-general

before the upcoming 2019 elections, and therefore, it was passed without

much opposition in both the Houses. An ordinary legislation is subject

to the limits of Constitution, but a constitutional amendment is only

subject to the basic structure doctrine. The basic structure test would

not have been there, had there been no Kesavananda Bharati or Nani

Palkivala. Due to the Kesavananda Bharati case,39 there is always a

chance of judicial scrutiny and judicial review for every constitutional

amendment, as this case laid down the fundamental principle that the

law-making power of parliament is not absolute and unlimited. The

Court held that judicial review is one of the basic features of the

Constitution, and the work of interpretation of the laws and the

Constitution has been assigned to judiciary. The National Judicial

Appointment Commission Bill is the best recent example where a

Constitutional Amendment Act passed by both the Houses of

Parliament was struck down by the judiciary. Similarly, now we have

this 103rd Constitutional Amendment Act, which will now face the basic

39 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and

Anr., AIR 1973 SC 1461.



structure test. The Apex Court has made it clear that the reservation

cannot exceed the 50% capping, which was first laid down in the M.R.

Balaji case,40 and then more clearly in the Indra Sawhney case.

The Indra Sawhney case41 also made it clear that reservation cannot be

given solely on the basis of economic criteria. As it was a nine judge

bench decision, a larger bench will be needed to overrule the Indra

Sawhney ruling. However, we should not forget that these rulings were

given in relation to a law or subordinate legislation and have never faced

the test of the basic structure doctrine. The most pertinent thing to

understand is the logic behind reservation. Reservation is not a policy

measure aimed at removing poverty, but positive discrimination for a

section of the society which has faced persecution from time

immemorial, and for making that section stand on an equal pedestal in

the society. Basing it on economic criteria will change the entire

meaning of reservation, which is likely to produce a lot of confusion and

social conflict. Interestingly, even if a person from the general category,

with the help of reservation, gets appointed in a government job, what

is the probability that he will get a job where he can get a yearly salary

of more than INR 8 lakh rupees per annum? The probability is less, and

with a salary of less than INR 8 lakh rupees per annum, his son or

daughter will be considered eligible for reservation again, and this will

become a vicious cycle. And reservation was never supposed to be a

never-ending cycle, but only a launch pad to make people reach a place

where they will not face discrimination any more, and will have equal

access to public resources.

40 M.R. Balaji v. State of Mysore, AIR 1963 SC 649. 41 Indra Sawhney v. Union of India, AIR 1993 SC 477.



VIABILITY OF RESERVATION FOR ECONOMICALLY

WEAKER CLASSES

Priyanka Singh†

ABSTRACT

The affirmative action sanctioned by the Indian

Constitution and executed by different

governments is called the Reservation Policy.

Reservation Policy is one of the constitutional

methods embraced by India to address the issues of

hundreds of years of oppression faced by specific

castes, thereby bringing about a wide range of

disparities. The present arrangement of

reservation benefits individuals of certain

haphazardly listed castes and places them on a

superior level, irrespective of their present social,

educational and economic status. The children of

administrative officers, judges, ministers and

economically well-off people get the advantage of

reservation, as economic criterion is not considered.

The people belonging to forward castes are not

given any reservation benefits even if they come

from a poor family where they have no resources to

get proper education. They are discriminated

against even if they are better in terms of merit.

The researcher seeks to study the viability of

reservation for such economically weaker classes of

the so-called forward castes. The economically

weaker classes of forward castes started

demanding reservation and the contemporary

government took a step in their favour by bringing

in the 103rd Constitutional Amendment, which

provides for 10% reservation for the Economically

Weaker Classes in educational institutions and

† 2nd year law student at Damodaram Sanjivayya National Law University,

Nyayaprastha, Visakhapatnam. The author may be reached at

[email protected].





public services. The researcher will discuss about

the evolution of reservation system in India, with

regards to these contemporary changes.

The researcher will further deal with the

arguments in favour of and against the validity of

reservation for the economically weaker classes.

We will also discuss the recently passed 103rd

Constitutional Amendment in this paper. And at

the end, the researcher will conclude by

determining the viability of such a reservation.

I. INTRODUCTION

The Indian Constitution specifies its objectives of imparting justice and

equality in its Preamble itself. To give everyone equal opportunities in

matters of education and employment is the first step in the direction of

achieving these objectives. The Preamble to the Constitution defines

India as a socialist state, which puts a responsibility on the government

to make welfare legislations and strive for the establishment of an

egalitarian society. But the reality, on the other hand, is very appalling.

Even after 69 years of India becoming a republic, we have miserably

failed to fulfil this dream of the founding fathers of our Constitution.

There have been many attempts by different governments to bring in

welfare legislations, either with the purpose of promoting equality or to

woo the general public before elections. One such legislation is the 103rd

Constitutional Amendment,1 which has become the subject-matter of

discussions and deliberations these days. This amendment provides for

10% reservation for the economically weaker sections in areas of

education and employment, which has always been a matter of debate.

There are various arguments which are being put up about the validity

and the invalidity of such a constitutional amendment. The researcher

will deal with both sides of arguments in this paper.

1 The Constitution (One Hundred and Third Amendment) Act, 2019.



Reservation, which is also called as protective discrimination or

affirmative action, has been expressly provided for in Articles 152 and

163 of the Indian Constitution in order to uplift the historically

oppressed classes and to bring them at par with other classes. It is one

of the aspects of public policy through which the interests of the

underprivileged of the Indian society are sought to be safeguarded. The

reservation policy aims at making amends for centuries of historical

wrongs inflicted on the undermined sections of the Indian society. The

reservation for socially backward classes like the Scheduled Castes and

the Scheduled Tribes has been there since the very inception of the

Constitution, but new contours have since emerged in this aspect. A

number of other classes also started demanding reservation, with the

progress of the society. These classes were combined together and were

given reservation in the name of Other Backward Classes in 1990. This

reservation has been given to the castes which were considered lower in

the social ladder of Indian society. The idea behind the reservation

policy is that these people have suffered a lot due to social practices

prevailing in the society, and now is the time to uplift them by undoing

the wrongs which have been done to them throughout history, be it

untouchability or any other similar social evil. Similar is the situation

for the economically weaker sections today: they are being deprived of

their basic rights due to their financial incapacity, and it becomes the

responsibility of the state to take special measures to bring them up.

Now is the time when the classes which are believed to be upper castes

in the society are also demanding for reservation benefits due to their

financial inability. The economically incapable and the poor are also a

part of the vulnerable and downtrodden sections of the society, and

reservation should be given to them as well, in order to bring them to

the mainstream. The researcher will seek to understand the need and

viability of such a demand for reservation in education and employment,

and consider its validity on the touchstone of constitutional principles.

2 Article 15(3) and (4) of the Constitution of India, 1950. 3 Article 16(4) of the Constitution of India, 1950.



II. EVOLUTION OF THE RESERVATION SYSTEM IN

INDIA

The policy of reservation was introduced in India long ago by the people

who ruled us, i.e. the British. They introduced reservations on the basis

of caste and community in order to implement their policy of divide and

rule. The intention behind this policy was to widen the gap between the

Hindus and the Muslims as well as the upper caste and the lower caste,

and to continue ruling our country. In 1925, the British Government of

India initiated the policy of reserving a certain percentage of posts in

government service for the minority communities. “Then in 1934, an

order provided that 25% vacancies will be exclusively reserved for

Muslims, and 81/3% to other minority communities.”4 And then, in

1943, reservation exclusively for the SCs was also introduced in order to

please Dr. B.R. Ambedkar.

In the post-independence period, communal representation was

replaced by the policy of reservation for the SCs and STs in educational

institutions and public services. A heated debate took place in the

Constituent Assembly regarding the reservation system. And at the end,

the Constitution makers gave way to introducing the policy of

reservation in the Constitution.

The Constitution itself, in various Articles, provides for positive

discrimination. Article 15(3) says that special provisions can be made

for welfare of women and children.5 Article 15(4) provides that special

provisions may be made for the advancement of any socially and

educationally backward class and for the Scheduled Castes and the

Scheduled Tribes.6 Article 16(4) permits the State to make any provision

for the reservation of appointments or posts in public services.7 Article

46 directs the State to promote, with special care, the educational and

economic interests of the weaker sections, in particular the Scheduled

4 J. Laxmi Narasimha Rao, Affirmative Action in India: Emerging Contours, 69 THE

INDIAN JOURNAL OF POLITICAL SCIENCE 483, 483-492 (2008). 5 Article 15(3) of the Constitution of India, 1950. 6 Article 15(4) of the Constitution of India, 1950. 7 Article 16(4) of the Constitution of India, 1950.



Castes and the Scheduled Tribes.8 Article 335 asks State to take into

consideration the claims of the SCs and the STs in the making of

appointments to services and posts.9 These Articles provide for

reservation for the SCs and STs.

Initially, there was no provision of reservation for the Other Backward

Classes. It was on January 1, 1979 that the former Prime Minister of

India, Morarji Desai, appointed a Backward Classes Commission,

popularly called Mandal Commission, under Article 340.10 The

Commission submitted its report in December, 1980. They identified

3743 backward classes and recommended for 27% reservation for

backward classes in government jobs. On 13 August, 1990, Prime

Minister V.P. Singh’s Government issued a memorandum accepting the

proposal, and announced a 27% reservation for the educationally and

socially backward classes.

Later, a few changes were made to the memorandum by the P.V.

Narasimha Rao-led Government.11 There was turmoil in the country

regarding the 27% reservation for the backward classes. A bench of nine

judges was set up in the Supreme Court for this purpose in the case of

Indra Sawhney v. Union of India,12 also known as Mandal Commission

case. With a ratio of 6:3, they upheld the reservation policy for the

backward classes with certain guidelines.

Dr. B.R. Ambedkar, the architect of the Indian Constitution once stated:

On the 26th January 1950, we are going to enter into a life

of contradictions. In politics we will have equality and in

social and economic life we will have inequality. In politics

we will be recognizing the principle of one man, one vote and

one value. In our social and economic life, we shall, by

reason of our social and economic structure, continuing to

8 Article 46 of the Constitution of India, 1950. 9 Article 335 of the Constitution of India, 1950. 10 Article 340 of the Constitution of India, 1950. 11 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1033-1034 (8th ed. 2018). 12 Indra Sawhney v. Union of India, AIR 1993 SC 477.



deny the principle of one man one value. How long shall we

continue to deny equality in our social and economic life?

We must remove this contradiction at the earliest possible

moment or else those who suffer from inequality will blow

up the structure of political democracy which this Assembly

has so laboriously built up.13

Dr. Ambedkar said that the hurdle of inequality must be removed for

the survival of democracy, and the inequality which he refers to is of two

kinds: the first being social inequality, and the other, economic

inequality. In order to remove social inequality, steps have already been

taken by the government by introducing positive discrimination. And

that has been in place for the socially and educationally backward

classes for seventy odd years. But no such big step has been taken for

the economically backward, and thus, we will continue to live a life full

of contradiction until and unless similar steps are taken to include them

in the mainstream. But then, the greater question is whether

reservation is the only way? Maybe it is not the only way, but since its

benefit is being availed by one class, it is obvious for the other class to

demand for the same.

Prima facie, it appears that the idea of reservation is an exception to

equality under Article 14, but when we dig deeper, we can understand

that, in fact, identical treatment for all will lead to inequality, because

by the very nature of society, everybody is placed in different

circumstances, and applying the same law to people differently

circumstanced would be injustice.14 So, the State needs to enact laws in

the best interest of the safety and security of the people, and for this

purpose, a reasonable classification is not just permitted but may be

necessary for the progress of the society.15

13 13 VASANT MOON, DR. BABASAHEB AMBEDKAR, WRITINGS AND SPEECHES 1216

(Department of Education, Government of Maharashtra 1994) 14 Atyant Pichhara Barg Chhatra Sangh v. Jharkhand State Vaishya Federation,

AIR 2006 SC 2814. 15 E.P. Rayappa v. State of Tamil Nadu, AIR 1974 SC 555.



Thus, providing special benefits to the economically weaker classes

through reservations can be done by making a classification, but such a

proposition has to pass the litmus test of reasonableness. The need for

providing reservations to economically weaker has to be considered,

looking at all the circumstances.

III. ARGUMENTS IN FAVOUR

Equality is a part of the basic structure of the Constitution.16 The idea

of introducing reservation for the economically weaker sections is based

on the principle of equality. The poor are underprivileged, and do not

have access to a number of basic amenities due to their financial

constraints. Thus, they are denied equal opportunities in matters of

employment and education. This becomes a pressing situation for the

state to play its welfare role and provide them with the much-needed

basic amenities and include them in the mainstream. The reservation

policy aims to provide opportunities to the poor who are not covered in

the reservation of SC/ST/OBC, that is, the economically weaker people

of the general category. The poor of the general category and the poor of

the other categories are similarly situated inasmuch as they face the

same difficulties in fulfilling even their basic needs. But one is given a

special privilege in the form of reservation, and the other is denied the

same, only on the basis of the caste. But the Supreme Court itself, in the

case of Balaji v. State of Mysore,17 stated that “Caste by itself cannot be

determining factor of backwardness though it may be one among several

factors. It is a relevant factor but not the sole factor.”18 So, neither the

courts nor the state can now deny reservation for the economically

weaker section only on the ground that they belong to the upper caste,

since the same treatment has been provided to the poor of the lower

caste.

16 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 17 Balaji v. State of Mysore, AIR 1963 SC 649. 18 Id.



The Preamble talks about social, economic and political justice. Social

justice is inclusive in nature; it can be achieved only when each and

every individual of this society is raised to an equal pedestal. Poverty is

a mark of backwardness where people are denied of their basic rights.

The need is to bring these people out of their economic limitations, and

provide them with their much-deserved rights. And reservation is one of

the best ways to give them the opportunity and space to come out of their

shells, especially where they have lost faith in the state and the justice

system.

Poverty denies people the opportunity to lead a decent and sustainable

life. Reservation, by the prevalent logic, ensures participation of the

disadvantaged and vulnerable groups in education and employment

through positive discrimination. Hence, there is a strong case for

providing reservation to the economically weaker classes of the general

category, as the economically weaker sections of the other categories are

already covered under their respective reservation policies.

Article 15(4), which provides for special provisions for the socially and

educationally backward classes, was also not there in the original

Constitution, but was introduced through First Constitutional

Amendment in 1951, when the need was felt for providing these sections

of the society with some special privileges to bring them up. So, now that

we feel that there is a strong requirement to give some special privilege

to the economically weaker section to uplift them, it can be surely done

by making another amendment to the Constitution. Since it has already

been done once and held to be valid, this should the right path to go for.

The Constitution is a living document. It changes with the changing

needs of the society. It changes with changes in customs and usage, and

in culture and traditions. Now, the society needs a policy of reservation

for the economically weaker, and it must be granted for the well-being

of the society and the upliftment of the poor.

Initially, there was no provision of reservation for the Other Backward

Classes. But with the passage of the time, they started demanding

reservation on the basis of their social and educational backwardness.



And the government, in 1990, was forced to give them reservation, and

the same was upheld by Supreme Court. History is repeating itself. The

situation is similar to the one in 1990: this time, the government has felt

the need to bring in a reservation policy for the economically weaker

section, as they are highly deprived of their basic rights due to their

poverty. The government introduced the 124th Constitutional

Amendment Bill to achieve this aim. It has been passed by the

Parliament and has become a law now. But the test of judicial scrutiny

is yet to be cleared. People are already arguing that the Apex Court will

declare it as unconstitutional. But when the Court understood the need

of the society in 1992 in the judgment of Indra Sawhney,19 they will also

understand it today. The Court will see the pros and cons of the law and

may reiterate the path it chose in 1992; it will realise the need for the

upliftment of the poverty-stricken classes in order to make our society

just and fair for everyone.

In the case of Chitralekha v. State of Mysore,20 two factors, i.e. economic

conditions and professions, were taken into account to define

backwardness, but caste was ignored. This was challenged before the

Supreme Court. The Court said that identification or classification of

backward classes on the basis of occupation-cum-income, without

reference to caste, is not bad and would not offend Article 15(4).

Considering this judgment of the Supreme Court, reservation on the

basis of economic criteria can be allowed.

The aim of the Constitution makers was to make India an inclusive and

egalitarian society, but if a chunk of our population is denied their basic

right to education and employment due to lack of money, then we are

failing that aim. There is a need to implement policies for the welfare of

these poor people and by providing them education and employment, we

will be able to use our human resources in a better way – we will get

skilled labour and India will move ahead on the path of development.

We have one of the largest human resources in the world: the need is to

19 Indra Sawhney v. Union of India, AIR 1993 SC 477. 20 Chitralekha v. State of Mysore, AIR 1964 SC 1823.



just develop their potential in the right way. Therefore, by taking this

step and by providing reservation to the economically weaker sections,

we will make our society a better place to live in.

IV. ARGUMENTS AGAINST

There has always been great resistance in the matter of giving

reservation to the economically weaker classes. There are a number of

arguments which are put forth to justify this resistance. The policy of

reservation was started initially for the SCs and STs as they were

historically oppressed and disadvantaged; it was a much-needed step to

bring them out of their ghettos. Then, with time, a few of the Other

Backward Classes started demanding reservation, showing their social

and educational backwardness, and the same was extended to them.

Now, the economically backward classes are demanding this protective

discrimination, but if we will go on granting the same, then everybody

else will start demanding it for some or the other justifiable reasons, and

the policy will lose its essence and meaning. Also, reservation will reach

such a high percentage that the reasonable equality of opportunity will

be denied to the unreserved classes. In the case of Devadasan v. Union

of India,21 the Supreme Court held that “the power vested to the

government under Article 16(4) could not be exercised so as to deny

reasonable equality of opportunity in public employment”.22

There are certain provisions in the Constitution which concede to the

policy of reservation but none of them allow reservation for the

economically weaker sections. If such reservation was needed, our

visionary Constitution makers would have given it a place in the

Constitution. Article 15(4) allows for reservation for the advancement of

the socially and educationally backward classes. Article 16(4) also

empowers the state to make special provisions for the reservation of

appointments in favour of any backward class of citizens. The Supreme

21 Devadasan v. Union of India, AIR 1969 SC 179. 22 Id.



Court, through various judgments, has defined which classes can be

considered as backward, in order to get the benefit under these sections.

The following are the criterion which needs to be fulfilled in order to be

considered as a backward class, according to various decisions of

Supreme Court:23

a. Article 15(4) and Article 16(4) speak of classes only, not of caste.

b. Caste, poverty, occupation, etc. by itself cannot be the sole

determining factor for backwardness, though each may be a relevant

factor and one among several factors.

c. Backward class must be both socially and educationally backward,

not either socially or educationally backward.

d. Reservation shall not be in excess of 50%.

e. Reservation cannot be made at the cost of administrative efficiency.24

The people who are appointed must be able to discharge their duty

properly.

In light of these guidelines, reservation exclusively on the basis of

economic criteria cannot be held to be valid. The economically backward

people which belong to upper castes can be called educationally

backward, but they are not socially backwards, and hence, are not

eligible to get the reservation benefit, as per the decisions of the

Supreme Court.

The reservation will also become excessive. In the case of Balaji v. State

of Mysore,25 the ceiling limit for reservation was fixed at 50% by the

Supreme Court. In another case of Arati Ray Choudhary v. Union of

India,26 the Court unequivocally stated that “the reservation for

backward communities should not be so excessive as to create a monopoly

or to disturb unduly the legitimate claims of other communities.” The

same was reiterated in the Mandal Commission case, wherein the court

23 Jain, supra note 11. 24 Proviso to Article 335 of the Constitution of India, 1950 25 Balaji v. State of Mysore, AIR 1963 SC 649. 26 Arati Ray Choudhary v. Union of India, AIR 1974 SC 532.



said that the total reservation shall not exceed 50% in any one year. In

India, 15% reservation is provided to the Scheduled Castes (SCs), 7.5%

to the Scheduled Tribes (STs) and 27% to the Other Backward Classes

(OBCs), amounting to a total of 49.5% reservation. Now, adding 10%

reservation for the economically backward classes, the total percentage

of reservation will reach 59.5%, thereby breaching the limit determined

by the Supreme Court, and this high percentage of reservation will deny

the reasonable equality of opportunity to the unreserved classes.

The Supreme Court emphasised in K.S. Jayasree v. State of Kerala27

that “Poverty or economic standard is a relevant factor in determining

backwardness, but cannot be sole determining factor.” In 1991, the

Narasimha Rao-led Government had proposed a 10% reservation for the

economically backward sections, i.e. for the people who were not covered

under any existing reservation scheme. This reservation was challenged

in the case of Indra Sawhney v. Union of India,28 wherein the Court

rejected the reservation of 10% posts in favour of “other economically

backward sections of the people who are not covered by any existing

schemes of reservations”. The Court said that

… such a category cannot be related to Article 16(4). If at

all, it can be related to Article 16(1). Even so, the court could

not sustain it. Reservation of 10% vacancies among open

competition candidates on the basis of income/property-

holding means exclusion of those who are above the

demarcating line from those 10% seats. It is not permissible

to debar a citizen from being considered for appointment to

an office under the state solely on the basis of his income or

property-holding. Any such bar would be inconsistent with

the guarantee of equal opportunity held out by Article

16(1).29

27 K S Jayasree v. State of Kerala, AIR 1976 SC 2381. 28 Indra Sawhney v. Union of India, AIR 1993 SC 477. 29 Id.



Recently, in 2016, the Gujarat government came up with an Ordinance

to provide reservation to the economically weaker classes of the

unreserved categories in the educational institutions in the state and of

appointments and posts in the services under the state. This was

challenged before the Gujarat High Court in the case of Dayaram

Khemkaran Verma v. State of Gujarat.30 The High Court quashed the

Ordinance, citing the previous cases of Supreme Court, which say that

reservation cannot be granted solely on economic basis.

In the light of these precedents and the various guidelines given by

Supreme Court in different cases, it seems that the reservation policy

for the economically weaker sections will fail the test laid down by the

Supreme Court. The previous stand of the Supreme Court has been

against reservation for the economically weaker classes. This will be a

big hurdle in the way of proving the constitutionality of the 103rd

Amendment, which has already been challenged before Supreme Court.

V. 103RD CONSTITUTIONAL AMENDMENT

The present BJP Government made a historical move by passing the

124th Constitutional Amendment Bill, thereby making reservation for

the economically weaker classes a reality. This Amendment was passed

by the Parliament in just two days. On January 18, 2019, it was passed

by the Lok Sabha, and the very next day, the Rajya Sabha also passed

it. It became one of the fastest passed constitutional amendments. The

Bill was introduced and passed hastily and hurriedly, with little

discussion and deliberation. A heated debate of 4-5 hours took place in

both the Houses, and the opposition parties alleged that the government

is passing it hastily in order to woo the general public a few months

before the general election. But, at the end, all the parties supported the

Bill, and it became a law. Some called it a politically motivated attempt

to get the support of the general category voters, while others believe

that it is a social welfare legislation aimed at uplifting those in poverty.

30 Dayaram Khemkaran Verma v. State of Gujarat, WP(PIL) 108/2016.



The 103rd Constitutional Amendment Act31 provides for 10% reservation

for the economically weaker classes of people, who are not presently

covered by any existing schemes of reservations. The reservation will be

provided in educational institutions, including private educational

institutions, and in public sector employment. The amendment has

added Article 15(6) and 16(6) to the Constitution.

Article 15(6) states that:

(6) Nothing in this article or sub-clause (g) of clause (1) of

article 19 or clause (2) of article 29 shall prevent the State

from making,—

(a) any special provision for the advancement of any

economically weaker sections of citizens other than the

classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any

economically weaker sections of citizens other than the

classes mentioned in clauses (4) and (5) in so far as such

special provisions relate to their admission to educational

institutions including private educational institutions,

whether aided or unaided by the State, other than the

minority educational institutions referred to in clause (1) of

article 30, which in the case of reservation would be in

addition to the existing reservations and subject to a

maximum of ten percent of the total seats in each category.

Explanation.— For the purposes of this article and article

16, "economically weaker sections" shall be such as may be

notified by the State from time to time on the basis of family

income and other indicators of economic disadvantage.32”

Article 16(6) states:

31 The Constitution (One Hundred and Third Amendment) Act, 2019. 32 Article 15(6) of the Constitution of India, 1950.



“(6) Nothing in this article shall prevent the State from

making any provision for the reservation of appointments

or posts in favour of any economically weaker sections of

citizens other than the classes mentioned in clause (4), in

addition to the existing reservation and subject to a

maximum of ten per cent of the posts in each category.33

Article 15(6) provides for reservation in educational institutions, and

Article 16(6) provides for reservation in employment.

The implementation of this scheme seems to be a difficult and hectic

task. There are no fixed parameters for educationally backward classes.

The government has drawn the criteria for economic weakness in such

a way that almost all Indians appears to be in the purview of this

reservation policy. “The families having annual financial income less

than 8 lacs will be eligible for reservation. Other parameters being that

the maximum area of agricultural landownership is not to be above 5

acres. The area of house should not be larger than 1,000 sq. ft. These

parameters seem to cover almost 95% of Indian households.”34 In such a

situation, how will this policy be able to benefit anyone?

There is no effective way to keep a check on the property and income of

people in India. Many people make fake documents for property and

income to evade taxes. And the problem is that obtaining fake income

certificates is very easy in India; so, how will the government stop these

fraudulent claims? No proper method for the implementation of this

scheme has been given by the government. This policy seems to be a

mere lip service. Further, the public sector in India is not generating

sufficient jobs; providing for reservation without creating adequate

opportunities will do no good to anyone.

33 Article 16(6) of the Constitution of India, 1950 34 Anirban Bandyopadhyay, General Category Quota: Why Reservation Delivers Little

Concrete Benefit, THE ECONOMIC TIMES (Jan. 9, 2019, 6:12 AM),

https://economictimes.indiatimes.com/news/politics-and-nation/upper-caste-quota-

why-reservation-delivers-little-concrete-benefit/articleshow/67444143.cms.



The Amendment has many glitches which makes it inconsistent with

the rules laid down by the Supreme Court regarding the reservation

policy. Whether it is breaching the total cap of 50% or that economic

criteria cannot be the sole factor for reservation, the amendment

violates all the rules. The Act has already been challenged before the

Apex Court. There are high chances that the Supreme Court will declare

it as unconstitutional. But in the past, there have been a number of

instances wherein the Supreme Court has changed its own stance on the

same issue with the changing needs of the society. As the society

progresses, laws also develop. The fate of this Amendment is in the

hands of Apex Court now.

VI. CONCLUSION

The policy of reservation or protective discrimination has always been a

matter of controversy in our country. The policy which was taken up

initially for just 10 years to uplift the historically disadvantaged classes

has continued to invade India even after seventy years of independence.

Reservations benefits are not actually reaching the people who are in

real need. The policy of reservation has failed miserably in our country,

and today, it has become just an agenda for political parties to woo

general public in order to keep their vote banks intact.

The 103rd Constitutional Amendment appears to be one more such

political agenda with no methods for implementation put in place. The

nation overall is still poor, with financial strength gathered in the hands

of a few. Also, an economic criterion that applies to a large part of the

populace being the reason for reservation for 10% is ludicrous. In

addition, the public sector is failing to produce more job opportunities.

This implies the amount of employment under this reservation will be

pathetically low, and the rivalry for them staggeringly fierce. The

situation of the poor in India is deteriorating day by day. The need of

the hour is to come up with a strong policy with proper implementation

techniques so that the benefits reach even the last person standing in

line. Already, there are innumerable policies for the upliftment of the



poor, but their lack of implementation is what takes the game away from

our hands.

With such policies in place, the reservation for the economically weaker

sections does not seem to be viable. Instead of reservation, there are

more options like scholarships for students and generating more

employment opportunities for the youth. If the government wants to

give reservation to the poor, it must be within the cap of 50% prescribed

by the Supreme Court, and a proper implementation with bona fide

intention.



ANTI-TRAFFICKING BILL: A SIREN’S SONG

Aarvi Singh & Swantika Kumar Rajvanshi†

ABSTRACT

The halo effect of law is the assumption that it is

rational and heuristically applicable on some sets of

problems, but even a law can be misapplied,

misconstrued or miscoded. One such mis-coded law

that has been framed from the perspective of neo-

conservative morality is the Trafficking of Persons

(Prevention, Protection and Rehabilitation) Bill,

2018. The Bill ensnares many flaws and is bound to

adversely affect the stakes at hand.

Although the Bill aims at incarcerating offenders

involved in trafficking, yet it also sweeps in innocent

victims and sex workers because of its ill-fitted

definition of aggravated trafficking, and an

asymmetric inclination towards penalisation rather

than rehabilitation. The Bill seems to be the poster

child for the violation of the fundamental rights

engrained in the Constitution of India. It

fundamentally destroys the essence of Articles 21,

23 and 19 of the Constitution, and it sterilizes

human rights in the name of rescue and raid, and

the provisions related to reparation is indeed

couched in such words that it will be misused;

further, it trespasses the natural law principles of

equity and fair trial.

The paper highlights the analysis of the Bill, and the

unconstitutional and in-humanistic loopholes

prevalent in it; and also underlines the changes that

this Bill necessitates to be legitimate.

† The authors are 3rd year B.A. LL.B. (Hons.) students at the Rajiv Gandhi National

University of Law, Punjab. The authors may be reached at [email protected]

and [email protected], respectively.






I. INTRODUCTION

When distinction between immoral and illegal seemingly blurs, the law

becomes a coercive conservative apparatus supplementing the needs of

those moralists who have supported such law. A vindication of human

rights makes no good law and it immunizes the principles of equity and

justice. The old Latin maxim aequitas sequitur legem, meaning equity

follows the law, is no more recognized in India. The impeccability of

equity remains untainted with unreasonable law and the practice of

courts has established that equity does not toe the lines of the law if the

law does not follow justice and public convenience;1 yet, time and again,

we encounter hasty legislations that are devoid of the principles of

equity and justice. Such hasty legislations create adverse conditions for

the people who might be affected by such law. The Trafficking of Persons

(Prevention, Protection and Rehabilitation) Bill, 2018 is one such

legislation which, if passed by the Parliament, will penalise many

innocent stakeholders.

The term trafficking of persons is defined as:

The recruitment, transportation, transfer, harbouring or

receipt of persons, by means of the threat or use of force or

other forms of coercion, of abduction, of fraud, of deception,

of the abuse of power or of a position of vulnerability or of

the giving or receiving of payments or benefits to achieve the

consent of a person having control over another person, for

the purpose of exploitation.2

The Global Slavery Index, 2016 reported that there were at least 18.3

million people trapped in this global menace, that is considered to be

1 CHARLES E. PHELPS, JURIDICAL EQUITY: ABRIDGED FOR THE USE OF STUDENTS 327

(M. Curlander 1894). 2 Protocol to Prevent, Suppress and Punish Trafficking in Persons supplementing the

United Nations Convention against Transnational Organized Crime, art. 3(a), Nov.

15, 2000, 2237 U.N.T.S. 319.

https://www.unodc.org/unodc/en/treaties/CTOC/index_old.html








modern slavery in India.3 In pursuance of combating the illicit threat of

the rapidly escalating phenomenon of human trafficking, the Trafficking

of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was

introduced in the Parliament in July, 2018. It was drafted by the

Ministry of Women and Child Development, in consonance with India’s

international obligations. The Bill is an appealing and alluring piece of

legislation, but in actuality, it is just an addition to the already

fragmented landscape of laws on human trafficking, exposing

vulnerable communities to a draconian punitive overkill.

Lon Fuller’s directory on law-making advocates non-retroactivity,

perspicuity, non-contradiction, generality, publicity, constancy, and

congruity4 as the characteristics of any law, and the Anti-Trafficking

Bill fails many of these tests. The Bill is just another failure of the

Indian legislature to understand societal requirements. The bulk of the

law can be put into three baskets in observance of the intention behind

the Bill and what it is trying to address, i.e. prevention, prosecution and

protection. The victim-centric model tries to counter human trafficking

from a pre-rescue, rescue and post-rescue perspective.5 The Bill has four

categorical flaws in line with Fuller’s catalogue:

a. It is contradictory to international law principles;

b. It is not congruent to the existing laws of the land dealing with

trafficking;

c. It lacks clarity; and

d. Factions of denizens are against the legislation as it fails to consider

their demands.

The constitutional provisions of liberty, freedom of choice and freedom

of movement are breached by the Bill, as it creates unauthorised

3 Walk Free Foundation, 2018 Findings - Country Studies: India, THE GLOBAL

SLAVERY INDEX, https://www.globalslaveryindex.org/2018/findings/country-

studies/india/. 4 LON FULLER, MORALITY OF LAW 39-90 (Rev. ed. Yale University, 1969). 5 Divya Trivedi, Drafted in a Vacuum, 35(19) FRONTLINE 119-120 (2018).



restrictions on women from earning and opting for the professions of

their choices.

II. LEGAL CONUNDRUMS

One of the many shortcomings of this Bill is that it, in its entirety, covers

provisions regarding trafficking for the purpose of sexual exploitation,

but the same is nowhere defined. It relies on Section 370 of the Indian

Penal Code, 1860 to define and establish that an offence of trafficking of

persons has been committed. In order to try offences under this Bill, the

prosecution will initially have to prove the pre-conditions specified

under Section 370, only then will the provisions of this Bill take effect.6

Where there was no dearth of law governing trafficking, this Bill is only

a compensation for the failure of the preceding legislations in curbing

the problem of human trafficking. The narrative behind having a new

anti-trafficking law is to fill the lacunae which the existing laws had left

in their wake. However, the current Bill is only a repetition of what has

already been dealt with in the Immoral Trafficking of Persons Act, 1986,

the Indian Penal Code, 1860, the Juvenile Justice (Care and Protection

of Children) Act, 2015, the Child Labour (Prohibition and Regulation)

Act, 1986, the Bonded Labour System (Abolition) Act, 1976, the

Information Technology Act, 2000, the Transplantation of Human

Organs Act, 1994, the Inter-State Migrant Workmen (Regulation of

Employment and Conditions of Service) Act, 1979, and many others.

The need of the hour is a comprehensive law which can harmonize the

different approaches and integrate the objectives of the existing

legislations. On the other hand, the Anti-Trafficking Bill, under Section

59, proposes ultimate overriding power of this legislation over any law

inconsistent with its provisions.7 Instead of granting clarity, this piece

6 Tripti Tandon, Does the Anti-Trafficking Bill Address Trafficking, THE HINDU, Oct.

18, 2018, https://www.thehindu.com/opinion/op-ed/does-the-anti-trafficking-bill-

address-trafficking/article24646941.ece. 7 Section 59 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018.

https://www.thehindu.com/opinion/op-ed/does-the-anti-trafficking-bill-address-trafficking/article24646941.ece

https://www.thehindu.com/opinion/op-ed/does-the-anti-trafficking-bill-address-trafficking/article24646941.ece



of legislation puts the entire existing legal framework regarding

trafficking in a chaotic turmoil, which, if enacted, would be in a dire need

of judicial construal. It has created a multiplicity of legal regimes –

Section 5 of the Immoral Trafficking Prevention Act, 1986 prescribes a

punishment of imprisonment between three and seven years and a fine

up to INR 2000 for procuring of humans for the purpose of prostitution

with or without their consent,8 and Section 370 of the Indian Penal Code

proposes a minimum of seven years of imprisonment for a similar

offence.9 Instead of synchronizing the provisions of both these laws, the

Bill just adds fuel to the fire by constructing more incomprehension.

III. FAILURE OF HUMANISTIC CRIMINOLOGY

Another anomaly in its drafting is the clubbing of an assortment of

offences under the head of the aggravated form of trafficking,10 one such

offence included in this new category, is — “encouraging or abetting any

person to migrate illegally into India or Indians to some other country”11

— which has a minimum punishment of ten years.12 This stipulation

undermines the right to migrate to and from any country, and conflates

trafficking and smuggling. It disregards the disparity between illegal

trafficking and standard migration opportunities. It confuses human

trafficking with the smuggling of migrants, which can lead to the

stigmatization of migrants and all the people involved in the process.13

8 Section 5 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018. 9 Section 370 of the Indian Penal Code, 1860. 10 Section 31 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018. 11 Section 31(xi) of the Trafficking of Persons (Prevention, Protection and

Rehabilitation) Bill, 2018. 12 Section 32 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018. 13 Bandana Pattanaik & Leah Sullivan, India's Anti-Trafficking Bill Ignores Socio-

Economic Realities of Trafficked Persons, 53(28) ECONOMIC & POLITICAL WEEKLY,

Jul. 14, 2018, https://www.epw.in/rethinking-2018-trafficking-bill.

https://www.epw.in/rethinking-2018-trafficking-bill

https://www.epw.in/rethinking-2018-trafficking-bill



The Bill suffers operational deficiencies and inconsistencies, as, on the

face of it, the Bill covers trafficking of bonded labour and forced labour,

but the spirit of sensitisation of labour reforms found in the addressing

of extreme exploitation under the Bonded Labour System (Abolition)

Act, 1976 is overlooked, which shows a carceral approach by the

legislature. The Anti-Trafficking Bill requires perceiving a labour-

sensitive approach to conceptualize trafficking and labour rights on the

pretext of the existing ground realities in the context of India. It is

essential for the government to create an interwoven legislation, which

addresses the social evil of human trafficking as well as bonded and

forced labour, as these offences are an end result of each other because

of which thousands of labourers are suffering every day. Since the

government is planning a consolidation of labour reforms, it is necessary

to merge the laws such as the Bonded Labour System (Abolition) Act,

1976 (Bonded Labour Act), the Contract Labour (Regulation and

Abolition) Act, 1970 (Contract Labour Act), the Inter-State Migrant

Workmen (Regulation of Employment and Conditions of Service) Act,

1979, the Children (Pledging of Labour) Act, 1933 and the Child and

Adolescent Labour (Regulation and Prohibition) Act, 1986 into the ambit

of the Anti-Trafficking Bill; otherwise, it will remain a skeletal law

without any flesh.14

The principle of legality has been the foundation stone for the centuries

old criminal justice system, and is an imperative instrument of

international criminal law. One of its fundamentally significant

components is the principle of certainty, derived from the Latin maxim

nullum crimen sine lege stricta. It postulates that criminal conduct

should be defined in such a precise manner that, through precedential

assistance, its qualifications can be explained as an offence which is

comprehensible to the population. But Section 36 of the Bill provides a

vague and indistinct elucidation for the offence of promotion and

facilitation of the trafficking of persons, which includes in its ambit any

14 Nalini Nayak, Anti-Trafficking Bill 2018 Fails to Address Changing Forms of

Labour Exploitation, 53(29) ECONOMIC & POLITICAL WEEKLY, Jul. 14, 2018,

https://www.epw.in/engage/article/anti-trafficking-bill-2018-severely.



form of advertising, publishing, printing, broadcasting, or distribution

of any informative material or propaganda for the promotion of

trafficking.15 This provision is a clear and comprehensive violation of the

principle of legality due to its amorphous and ambiguous language, as it

can be enforced against a wide range of people not engaging in or

facilitating trafficking in any way. Since sex work and trafficking are

two conflicting terminologies, this provision could be abused for

incriminating sex workers and identifying them as victims of trafficking.

IV. FAULT OF PRESUMPTIONS

The right to liberty and free trial are universally recognised

fundamental rights based on the approach of human rights preached by

the Universal Declaration of Human Rights, 1948 and the International

Covenant on Civil and Political Rights, 1976. These are customary

international rules aimed at ensuring the proper administration of

justice. These rights have also been recognised by the Supreme Court of

India as an elementary part of the Indian criminal jurisprudence.16 They

include in their domain the right to a legal counsel, the presumption of

innocence, the burden of proof on the prosecution, etc. India, under

Article 51 of the Constitution, is bound to follow these international

obligations, but the draft Bill, while trying to establish a purely criminal

approach, results in potentially jeopardizing the rights of accused

during trial, such as the presumption of innocence, the burdens and

standards of proof, and the right of appeal.

Section 17 of the Bill empowers the police to remove and rescue people

from premises when they believe there is imminent danger that may

cause harm to his life and person.17 The Bill provides little to no room

for the victims identified from the rescue raids of the establishments of

15 Section 36 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018. 16 Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367. 17 Section 17 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018.



sex workers to get any aid or assistance from any agency regarding their

situation or to consent to being rescued. Such interventions are usually

the leading factors for the abuse faced by sex workers by the police in

their custody. According to the World Health Organization (WHO) and

the Global Coalition on Women and AIDS, “in several countries certain

activities such as rescue raids of sex establishments have exacerbated

violence against sex workers and compromised their safety”.18 In 2015, it

was reported by the High Level Committee on the Status of Women set

up by the Ministry of Women and Child Development that the rescue

and rehabilitation provisions under the Indian criminal laws are based

on a moralistic approach towards sex work, which results in widespread

abuse of human rights.19 The Bill makes no indication regarding the

rights of the individual to access legal representation or have any

communication with their family, which is a gross violation of the rights

of a detained person or a person in custody.

Section 20 of the Bill automatically shifts the burden of proof and

presumes the guilt of the person who is prosecuted for committing any

offence under this Bill, specifically in respect of a child or a woman or a

person suffering from any mental or physical disability. This Section is

in violation of the customary international law which states that it is

the right of the accused to be presumed innocent until convicted in

accordance with the law qualifying the minimum requirements for

fairness and equality. It is a characteristic feature of the rule of law and

the principles of natural justice. Although the prerequisites of burden of

proof are not explicitly mentioned in the International Covenant for

Civil and Political Rights or the UDHR, the European Court of Human

Rights and the African Commission have implied that the presumption

18 WHO and the Global Coalition, Women and AIDS, Violence Against Sex Workers

and HIV Prevention, Violence Against Women and HIV/AIDS: Critical Intersections,

WHO INFORMATION BULLETIN SERIES: NUMBER 1, 2005,

https://www.who.int/hac/techguidance/pht/InfoBulletinIntimatePartnerViolenceFinal

.pdf. 19 Ministry of Women and Child Development, REPORT OF HIGH-LEVEL COMMITTEE

ON STATUS OF WOMEN, at 1197-1198 (2015).



of innocence requires the prosecution to prove guilt beyond reasonable

doubt for an accused to be convicted.

Similarly, Section 34 and 35 of the Bill provide that the burden of proof

would lie on the ones managing the premises or the closure of premises

where trafficking occurs, and they need to prove that they exercised due

diligence and that trafficking was not occurring on their property. At the

same time, the offences mentioned under the Bill are cognisable, non-

bailable and punishable with high, often minimum, mandatory

sentences including life imprisonment.

V. BUREAUCRATISATION

A hierarchical order of anti-trafficking committees has been created

under the Bill, as an uncharacteristic amount of diligence has been

contributed to streamlining a maze of bureaucratisation to grant care

and protection. Three bodies have been introduced, hierarchically – the

National Anti-Trafficking Relief and Rehabilitation Committee,20 the

State Anti-Trafficking Committees,21 and the District Anti-Trafficking

Committees22 – that have institutionalised the protective and

precautionary steps towards curing trafficking. In addition, when

Section 13 of this Bill is read in conjunction with the provisions of

Section 21, there is a risk of conflation of executive and legislative

powers by the District Anti-Trafficking Committee, which is against the

fundamental doctrine of separation of powers.

This lack of clear delineated roles and responsibilities within these units

could lead to confusion and chaos in recognizing the required centralized

procedure for functioning. In addition to that, none of the recommended

bodies have any representation from the communities which are

20 Section 11(1) of the Trafficking of Persons (Prevention, Protection and

Rehabilitation) Bill, 2018. 21 Section 12(1) of the Trafficking of Persons (Prevention, Protection and

Rehabilitation) Bill, 2018. 22 Section 13 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018.



essentially being affected, and whose involvement and perception is

imperative for addressing the nuisance that is human trafficking. This

is not only an action of blatant ignorance on the part of the legislature,

but is a barefaced disobedience of the recommendations given by the

panel appointed by the Supreme Court.23

VI. LAW THAT IS MADE BY ‘KING REX’

Taking a criminal law approach to a human rights issue,24 the Bill is

merely a unfortunate compilation of provisions of trafficking related

issues from various other enactments. The Bill carries on its shoulder

the liability to incriminate the wrong-doer, as the provisions under it are

dedicated more towards search and seizure,25 and investigation and

punishment. Issues like rehabilitation of the victim, shelter home care

and functioning, safety and reparation of victims are wrapped up in

mere twelve (out of fifty-nine) provisions of the Bill. At the same time,

the Bill does not address any concept of funding or compensation for the

victims, and solely relies on the establishment of protection homes and

rehabilitation centres. Protective measures such as cash assistance,

housing requirements, education of children and livelihood support that

are included in the policies for the victims of bonded and forced labour,

are missing for the victims of trafficking in the proposed Bill. The

recommended rehabilitation fund lacks financial obligation, and is just

an empty platitude.

The evolution of civilisation has witnessed the dehumanisation of sex

workers: fallen women, ladies of the evening, loose women are some of

23 Tripti Tandon, India's Trafficking Bill 2018 is Neither Clear Nor Comprehensive,

53(28) ECONOMIC POLITICAL WEEKLY, Jul. 14, 2018,

https://www.epw.in/engage/article/trafficking-of-persons-prevention-protection-and-

rehabilitation-bill-2018-is-neither-clear-nor-comprehensive. 24 Press Release, India must Bring its New Anti-Trafficking Bill in line with Human

Rights Law, urge UN Experts, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH

COMMISSIONER,

https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23392&La

ngID=E. 25 Section 15 of the Trafficking of Persons (Prevention, Protection and Rehabilitation)

Bill, 2018.



the terminologies used to address them, and these phrases reflect the

moral deprivation that the society has attached to them. Many works

portray sex workers as non-virtuous or sinful, for example, the Biblical

character of Gomer in the book of Hosea was an adulteress;26 Phyrne27

from Greece was charged with impiety and Hypereides defended her

case. This legacy of imputing immorality with the sex business can be

traced in the bare provisions of the Bill.

A major flaw of the Bill is the preposterous presupposition of the

synonymy of trafficking with sex commerce. The difference between sex

enslavement and sex commerce has been clearly omitted in the Bill.

Similar misunderstandings have plagued the judicial system as well in

the case of Gaurav Jain v. Union of India, wherein it erroneously noted

that “to recognize prostitution as a legitimate means of livelihood would

be an open invitation to trafficking in women which is shunned

internationally and in all the civilized nations of the world”.28 In the case

of Budhadev Karmaskar v. State of West Bengal,29 the Supreme Court

appointed an expert panel for consideration of any potential reforms

required for the establishment of a community-based rehabilitation of

trafficked victims, as it held that even prostitutes had the right to live

with dignity, but the Bill has turned a blind eye to these

recommendations.

The legislation is enacted with a myopic view towards sex commerce;

rather than aiming at protecting sex workers, it focuses on curbing their

occupation, thus allowing the perpetuation of systematic castration of

sex workers. The legislative cradle creates a vacuum for the notion of

decisional autonomy. Victims, in case of human trafficking, are

predominantly women and children, but that does not mean that every

26 JAMES L. MAYS, HOSEA: A COMMENTARY 49 (Westminster John Knox Press, 1969). 27 Craig Cooper, Hyperides and the Trial of Phryne, 49(4) PHOENIX 303–318, 1995,

https//:www.jstor.org/stable/1088883. 28 Gaurav Jain v. Union of India, (1997) 8 SCC 114. 29 Budhadev Karmaskar v. State of West Bengal, (2011) 10 SCC 283.



woman in sex commerce is a victim – some have voluntary chosen it30 as

a means for earning. Labelling of all women as victims in sex trade,

either because of coercion or circumstances, is a reinforcement of the

stereotypes that a woman can never freely opt for transactional sex. A

woman, therefore, remains a conglomeration of social morals and

feminine values, and any deviation from the established mores debases

her femininity; this patriarchy-based social behaviourism has robbed

sex workers of their basic human rights. This assessorial behaviour has

been used to outline the moral compass used for criminalising sex

workers. There exists no causal relationship between voluntary sex

commerce and trafficking; thus, there is an absence of legal causation

for imputing liability on them. Martha Nussbaum’s capability

approach31 measures the quality of life in any nation and it states that

the degree of holistic development of an individual cannot be adjudged

by the availability of opportunities, but by the capability to utilise those

opportunities. There cannot be limiting of choices over the occupation a

person wants when the right to choose is protected by the fundamental

rights under the Indian Constitution, and this neo-regulationist group

considers voluntary sex services as legitimate labour.32

The legitimacy of the sanction over sex transactions forces the parties to

find different routes to carry on their business. This causes multiple

problems, such as (i) lack of a safe work environment, leading to sex

workers soliciting work via massage parlours, salons, online services,

etc., (ii) lack of safe and secure bargaining power, and (iii) increased

dependency upon intermediaries for income. This absence of a safe

30 INE VANWESENBEECK, SEX WORKERS’ RIGHTS AND HEALTH THE CASE OF THE

NETHERLANDS: GLOBAL PERSPECTIVES ON PROSTITUTION AND SEX TRAFFICKING 3-25

(Lexington Books 1997). 31 M.C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH

60-80 (Cambridge University Press 2000). 32 Saunders, Penelope, Traffic Violations: Determining the Meaning of Violence in

Sexual Trafficking Versus Sex Work, 20 JOURNAL OF INTERPERSONAL VIOLENCE 343,

360 (2005).



workplace further aggravates health problems, while right to health33 is

a fundamental right recognised under Article 2134 of the Constitution.

The question remains as to whether such rights have some intrinsic

importance or if they just have instrumental relevance.35 In case of sex

workers, these rights are merely ornamental in nature, serving no

actual purpose or protection. The non-recognition of sex work as a

business disfavours the proper implementation of contracts and its

related benefits. Further, the illegality perpetuates divestments as the

operators are cauterized as criminals for exploiting prostitutes and

living on their earnings, irrespective of the nature of treatment provided

to the workers.

Due to the error in the Bill, even before the filing of a civil or criminal

suit against involuntary sexual enslavement, the victims might get

embroiled in a legal battle to absolve themselves from a guilt that never

existed. A case similar to this hypothesis took place in the USA: the El

Monte case of 1995,36 where the Thai workers, after being rescued from

the duplexes of El Monte, were fighting against another set of ordeals to

free themselves from the legal battle as they were transported to the

Immigration and Naturalisation Services.

A recent study by the organisations SANGRAM and VAMP showed that

of the 243 women who were picked up as part of raid and rescue actions

in Maharashtra, an overwhelming majority, i.e. 193, were adults and

doing sex work of their own volition. They were put in rehabilitation

homes without their consent. The detrimental and sometimes fatal

consequences of these raids are apparent, as in a case in April 2019,

33 People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Bandhua

Mukti Morcha v. Union of India, AIR 1984 SC 802; Paschim Banga Khet Mazdoor

Samity v. State of West Bengal, AIR 1996 SC 2426. 34 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 35 Amartya Sen, Fertility and Coercion, 63 CHICAGO L. REV. 1035–62 (1996). 36 DAVID DIAZ AND MARTA LÓPEZ-GARZA, ASIAN AND LATINO IMMIGRANTS IN A

RESTRUCTURING ECONOMY: THE METAMORPHOSIS OF SOUTHERN CALIFORNIA 27 (1st ed.

2002).



where two sex workers lost their lives while attempting to flee a police

raid.37

The Bill propagates that vulnerability means the lack of autonomy, and

creates a constitutional roadblock; while attempting to uphold Article

23, the provisions in it violate Article 21, i.e. the right to life of adult

consenting sex workers. The Bill is a reinforcement of the same old

ideology of rescue and rehabilitate, but what about what lies ahead?

Legislative revision is a prerequisite before this Bill becomes an Act, as

countless factions of the society will be affected. The Bill may not be

ideal, but with the relevant corrections, it could be a potential deterrent

against trafficking, and could save millions of lives. But time is of

essence as data available from the National Crime Records Bureau

indicates that there were 8,132 reported cases of human trafficking

across India in 2016.38 The International Labour Organisation has

expanded the definition of workers by incorporating all forms of work or

arrangements at all workplaces, including persons in any employment

or occupation.39 This definition recognises the labour done by sex

workers, and India needs to bring this legislation at par with

international standards. A proper scrutiny by a Standing Committee

should be a pre-condition. Article 5140 deals with promotion of

international peace and harmony, and it entails respect for

international treaties and obligation. The Bill violates the United

Nations Convention against Transnational Organized Crime and the

37 S. Anasuya, Experts Oppose Proposed Anti-Trafficking Bill, Ask for It to Be Sent to

Standing Committee, THE WIRE, Jul. 19, 2018, https://thewire.in/rights/experts-

oppose-proposed-anti-trafficking-bill-ask-for-it-to-be-sent-to-standing-committee. 38 Ministry of Home Affairs, Crime in India 2016 Statistics, NATIONAL CRIME

RECORDS BUREAU, at 512, 518,

http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20Indi

a%20-%202016%20Complete%20PDF%20291117.pdf. 39 International Labour Office, RECOMMENDATION CONCERNING HIV AND AIDS AND

THE WORLD OF WORK NO. 200 (2010),

http://www.ilo.org/public/english/region/eurpro/mos- cow/info/publ/wcms_142706.pdf. 40 Navtej Singh Johar and Ors. v. Union of India and Ors., AIR 2018 SC 4321;

National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438.

https://www.thehindu.com/news/national/activists-oppose-draft-anti-trafficking-bill/article24445893.ece

https://thewire.in/rights/experts-oppose-proposed-anti-trafficking-bill-ask-for-it-to-be-sent-to-standing-committee

https://thewire.in/rights/experts-oppose-proposed-anti-trafficking-bill-ask-for-it-to-be-sent-to-standing-committee

http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf






inclusive UN Trafficking Protocol, and is thus, against the international

obligatory standards.

Autonomy is sine qua non for reproductive justice, but the moral

economy places hurdles when a woman makes the choice of earning by

renting her womb. This labour-remuneration model is seen as a

defilement of her dignity and integrity. Neo-conservatism raises ethical

and moral concerns over commercial surrogacy, and these concerns

converge into regulations or laws with punitive consequences to

women’s rights over her reproductive freedom.41 This Bill reinforces

heteronormativity by placing a complete ban on commercial surrogacy.42

Penalisation of every facet of surrogacy may not be interpreted as an

inherent abuse of human rights, as it is a mode of exploitation, but the

underpinnings are such that it denies the earner a meaningful mode of

earning. The disproportionate economic status of men and women leave

little or negligible opportunities for women to contribute to the economic

landscape. The routes to economic empowerment can be many, and

opting to be a surrogate is one such route. Blurring the distinction

between women trafficked to be surrogates and women who voluntarily

opt for it, by not expressing the latter in the Bill as exclusionary, will

create a problem in the future.

VII. CONCLUSION

The normative jurisprudential question on the nature of law lies in lex

aliquando sequitur aequitatem, implying that law follows equity; but the

Bill is simply a piece of legislation contrary to this aphorism. The

purpose of any public policy is to enhance the public sphere, but if any

policy demands the surrender of reproductive capabilities43 in name of

protection and rehabilitation, then this policy serves no purpose. The

policy will ultimately be fatal for the victims, as the scorch of raid creates

41 Sen, supra note 35, at 1035. 42 Section 31(3) of the Trafficking of Persons (Prevention, Protection and

Rehabilitation) Bill, 2018. 43 Nussbaum, supra note 31, at 94.



fear and insecurity, and the severity of the law does not guarantee the

security of victims, but rather perpetuates their vulnerability.

The Bill should protect the interests of sex workers by categorising their

work as an occupation. Further, in case a woman does not want to leave

her profession, it must ensure protection at work and proper health

coverage. In case of surrogacy, the complete ban should be substituted

with proper regulation. The moral-cultural nexus cannot create a law

that forces a section of the citizens to accept stereotypical rightlessness

as their status. The constitutional front needs to be addressed by the

Bill, and the makers must take into consideration the guidelines of the

honourable Supreme Court as well as the relevant international

treaties. The Indian Constitution has many safeguards protecting the

rights of individuals. The Bill attempts to transgress the vigour of the

Constitution, and this unauthorised attempt must be restricted. The

spirit of Lon Fuller is possibly traumatized at the quandary that such a

hasty enactment might entail the determination of the fate of many

innocent and helpless human beings. Law remains a quagmire for many,

but this time it may become a quarantine for some.



THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION:

A COMPARATIVE ANALYSIS OF THE INDIAN LAWS AND THE

U.S. FIRST AMENDMENT

Aditi Singhal†

ABSTRACT

Freedom of Speech and Expression is a right that has

seen centuries of struggles by various citizens across

nations before gradually being recognized as a right.

While this right is not absolute, and has restrictions

in various parameters ascribed by law, there is an

increasing need to revise whether such restrictions

are actually necessary and justified.

This paper looks at the different challenges posed to

the doctrine of free speech under the Indian

Constitution, and gives a comparative analysis

between the Indian and the American jurisprudence

on the same. It attempts to unearth and articulate

the legal interpretations of the three primary

challenges to this doctrine, which are – the

incitement of illegal offences like sedition, compelled

speech, and sexist as well as sexually oriented

speech. Unsatisfied with the judicial interpretation

of these limitations, the paper goes on to suggest

different tests for these three instances, which the

author believes would ensure a proper balance

† 4th year B.A. LL.B. student at Jindal Global Law School.

The author is grateful to Prof. Mark Rosenbaum, Visiting Faculty of Law, Peking

University, School of Transnational Law, for his continuous guidance and support.

This paper was originally a part of the course: “Issues of Free Speech and the First

Amendment”, which was offered by Prof. Rosenbaum at Peking University, School of

Transnational Law.

The author is also grateful to Mr. Anujay Shrivastava, Mr. Jayant Malik and Mr.

Kaustubh Kapoor, 4th Year B.A., LL.B. students at Jindal Global Law School, for

their valuable feedback and review. Any errors remain solely her own.



between the act of reasonably limiting the scope of

the right and the right itself.

Finally, the author proposes a model of free speech,

which can balance both the benefits of free speech

and the need for restrictions, if any, by the State,

while trying to address contemporary difficulties

within the legal-constitutional realm.

I. PURPOSE AND AIM

Through this paper, the author aims to look at certain issues that

concern the Indian society, with respect to the right to freedom of speech

and expression, as guaranteed under the Indian Constitution.1 The

paper focuses on how these restrictions pose a threat in a democratic

and free society, where the people are guaranteed the right to voice their

concerns, opinions, critiques, and the like.

Part II of the paper will first introduce the concept of free speech as

understood under the Indian Constitution. Subsequently, the paper

shall focus on three of the many issues which pose a threat to the free

speech doctrine. Part III shall discuss these three issues from the Indian

constitutional perspective. Once the Indian context is understood, Part

IV of the paper shall shift from the Indian legal perspective, and explain

how the United States’ laws look at free speech,2 and how the First

Amendment3 differs from the Indian jurisprudence. Lastly, in Part V,

the paper proposes a model theory of free speech which can be adopted

by the government, keeping in mind both the benefits of free speech and

the need for restrictions, if any.

1 Constitution of India, 1950. 2 U.S. CONST. art. I. 3 U.S. CONST. amend. I.



II. FREEDOM OF SPEECH AND EXPRESSION IN THE

INDIAN CONTEXT

Part III of the Constitution of India4 deals with the fundamental rights

for the citizens of India, which are guaranteed to them. These rights

cannot be violated by the state, unless it is done in the manner provided

by the Constitution itself. Article 19(1)(a) of the Constitution5 secures

the right to freedom of speech and expression to every citizen. It

guarantees the people the liberty to express their views, opinions, and

beliefs. However, such freedom, in no way whatsoever, equates to the

right to say whatever one likes, whenever and wherever. Another

important element of this right is that the freedom of speech under this

article includes the liberty of the press. Chief Justice Patanjali Sastri,

in the case of Romesh Thappar v. State of Madras,6 held that the

freedom of speech and of the press lay at the foundation of all democratic

organisations.

However, Article 19(2)7 gives us a list of situations wherein the

restrictions imposed on the freedom of speech and expression would be

considered reasonable, as well as permissible for exercise by the law-

enforcing authorities. Some of these restrictions include speech which

affects the sovereignty and integrity of India, which leads to the

incitement of an offence, which is indecent or immoral, etc.8 If an act

falls under any of the situations listed under this clause, the person

would be held in violation of the concerned laws and would not be

protected by the free speech doctrine.

4 Constitution of India, 1950. 5 Article 19(1)(a), Constitution of India, 1950. 6 Romesh Thappar v. State of Madras, AIR 1950 SC 124. 7 Article 19(2), Constitution of India, 1950. 8 Id.



III. ISSUES RAISING SERIOUS CONCERNS ABOUT SPEECH

AND EXPRESSION IN INDIA

There are various issues which act as a slippery slope when it comes to

free speech. It is in these situations that it always becomes difficult to

decide whether such speech is to be allowed or restricted. There are

various such cases in India, wherein we see academicians, legislators,

policy makers, and the public at large engaging in discussions as well as

debates, in order to decide whether the people’s right to speech should

be curtailed or not. Some of these issues arise with acts like

demonstrations, dramatic performances, sedition, incitement of illegal

offences, etc. In all these situations, we have often seen the Indian

government trying to apply the limitation of reasonableness as per

Article 19(2).

For instance, demonstrations, which are also known as protests in local

terminology, are a pretty common phenomenon in India. People take to

the streets to voice their concerns, opinions and demands, relating to

various issues, together as a society, and they often try to put across this

demonstration through the platform of the media. In some situations,

this can be a concern for the government due to varying reasons, which

is why they try to curb it by imposing a ban on any such act which causes

public disorder in their view. However, in the case of Kameshwar Prasad

v. State of Bihar, 9 it was held by the Supreme Court of India that

demonstrations, being visible representations of ideas, would be

protected as a form of speech, provided they are not violent and

disorderly. This is one very clear depiction of the problem that these

issues pose. It becomes hard to draw a line between what is allowed and

what is not. In the case here, the Court decided based on the effect of the

speech. But what remains of interest to many is whether any such

restriction imposed serves as an infringement of the right of people to

practice free speech.

Similarly, there are other different issues related to the free speech

doctrine that concerns the Indian society, and can be discussed in the

9 Kameshwar Prasad and Ors. v. The State of Bihar and Ors., AIR 1962 SC 1166.



context of the First Amendment and Indian laws. However, for the

purpose of this paper, the author would be restricting herself to focus

only on situations of incitement of illegal offences, compelled speech, and

sexist and sexually oriented speech as the grounds causing unrest, as

well as the law’s position with respect to these in the Indian society.

1. INCITEMENT OF ILLEGAL OFFENCES

The Indian Penal Code, 186010 (“IPC”) governs all the criminal acts of

the people within the Indian State. It is the prime authority which deals

with the description of various crimes, and the different punishments

related to them. While there are certain special legislations which deal

with certain narrow categories of crime, the IPC continues to remain the

general as well as primary authority to deal with criminal cases. It is,

thus, a very comprehensive document which deals with almost all issues

related to different kinds of crimes. There are various acts which have

been classified as illegal under the IPC, like murder, rape, sedition, etc.

Similarly, incitement of certain offences is also a crime as per the law.

It is some of these offences, which are related to speech and expression,

that form the grounds for our analysis in this section.

There are various sections of the IPC which criminalise certain types of

speech. Few of these provisions are Section 153A,11 Section 292,12

Section 295A,13 and Section 298,14 which criminalise speech related to

different groups on two grounds—obscenity and religion. Another such

offence is sedition, wherein both the act and mere incitement of it have

been identified as illegal by the State. Section 124A of the IPC,15 deals

with the offence titled sedition. For an act to be classified as sedition, a

person needs to say or do something which amounts to an act against

the safety, peace and order of the state. It is in this manner that this is

10 The Indian Penal Code, 1860. 11 S. 153A of the Indian Penal Code, 1860. 12 S. 292 of the Indian Penal Code, 1860. 13 S. 295A of the Indian Penal Code, 1860. 14 S. 298 of the Indian Penal Code, 1860. 15 S. 124A of the Indian Penal Code, 1860.



in conflict with the idea of freedom of speech and expression, as

guaranteed under Article 19(1)(a). It can be argued that such a law

violates the doctrine of free speech and expression.

The Supreme Court of India has dealt with the conflict between the law

related to sedition and the right to free speech in the case of Kedarnath

Singh v. State of Bihar,16 wherein the Court held that speech and

expression of individuals which disrupts the law or provokes and incites

violence will amount to sedition under the laws of the nation. Recently,

the Supreme Court, in 2015, again ruled on this matter in the wake of

different arrests and political movements with respect to such laws. It

applied the Clear and Present Danger Test, like the USA, in the case of

Shreya Singhal v. Union of India,17 and held a particular law to be

restrictive because “it has no element of any tendency to create public

disorder which ought to be an essential ingredient of an offence that it

creates.” Paragraph 83 of this judgement is extremely important and

states that:

Information that may be grossly offensive or which causes

annoyance or inconvenience, are undefined terms which

take into the net a very large amount of protected and

innocent speech. A person may discuss or even advocate by

means of writing, disseminate information that may

be a view or point of view pertaining to governmental,

literary, scientific or other matters which may be

unpalatable to certain sections of society… Any

serious opinion dissenting with the mores of the day would

be caught within its net. Such is the reach of the section and

if it is to withstand the test of constitutionality, the chilling

effect on free speech would be total.

Thus, it was again reinstated by the Court that an action can

tantamount to sedition only and only if it amounts to an incitement of

violence, and disruption of law and order. In all other situations, an act

16 Kedarnath Singh v. State of Bihar, AIR 1962 SC 955, at 36-39. 17 Shreya Singhal v. Union of India, AIR 2015 SC 1523, at 41.



being charged for sedition would be in violation of the individual’s right

to free speech.

However, even after the presence of such clear guidelines by the Court,

it is time and again observed that the government imposes laws on

sedition in situations of mere criticism of the Government of India, of its

constituent states, of its policies and of religion. Various governments

have constantly used this for curbing dissent.

Arundhati Roy, a famous Indian author, had once made comments on

Kashmir and the Maoists – both sensitive topics in India – and was

charged for sedition with reference to this act. Similarly, a case of

sedition was also filed against Amnesty India for protesting against the

violation of human rights in Jammu and Kashmir.18

There are several other instances where charges of sedition were levied

upon individuals, like the cases of Kanhaiya Kumar, a student at

Jawaharlal Nehru University,19 and Ramaiya,20 a South Indian actress.

In 2011, cartoonist Aseem Trivedi was also arrested in Mumbai for

putting up banners that mocked the Indian Constitution.21 The case

relating to Aseem Trivedi, however, went to court, and the arrest was

held to be violative of Trivedi’s right to freedom because his acts

amounted to political satire. It was held that “...words, signs or

representations, just by virtue of being against politicians or public

officials cannot be said to be against the government...”. 22

18 Press Trust of India, Sedition Case Registered Against Arundhati Roy, Geelani,

NDTV, Nov. 29, 2010, https://www.ndtv.com/india-news/sedition-case-registered-

against-arundhati-roy-geelani-440611. 19 ET Bureau, Kanhaiya Kumar, Others Charged with Sedition, THE ECONOMIC

TIMES, Jan. 15, 2019, https://economictimes.indiatimes.com/news/politics-and-

nation/kanhaiya-kumar-others-charged-with-sedition/articleshow/67534948.cms. 20 Maya Sharma, Ramya, Accused of Sedition for Pakistan Comment, Says won't

Apologise, NDTV, Aug. 25, 2016, https://www.ndtv.com/karnataka-news/actor-

politician-ramya-faces-sedition-case-for-pakistan-not-hell-comment-1448902. 21 Jason Burke, Indian Cartoonist Aseem Trivedi Jailed after Arrest on Sedition

Charges, The GUARDIAN, Sept. 10, 2012,

https://www.theguardian.com/world/2012/sep/10/indian-car=toonist-jailed-sedition. 22 Sanskar Marathe v. State of Maharashtra & Ors, 2015 ALL M.R. (Cri) 4637, at 16.

https://www.ndtv.com/india-news/sedition-case-registered-against-arundhati-roy-geelani-440611




https://economictimes.indiatimes.com/news/politics-and-nation/kanhaiya-kumar-others-charged-with-sedition/articleshow/67534948.cms




https://www.ndtv.com/karnataka-news/actor-politician-ramya-faces-sedition-case-for-pakistan-not-hell-comment-1448902






Thus, this is a very important issue in India today: people’s participation

in the working of the government becomes essential while living in a

free and democratic society. Criticising the government, pointing out its

faults and where it went wrong is merely a way of helping the society to

improve and function in a better manner. The government is of the

people, by the people and for the people, and thus, the people should be

entitled to air their opinions on government actions. Arresting people

for merely pointing out the obvious and voicing their opinions is, thus,

illegal, and should not be carried out as it wipes out any possibility of

constructive criticism for the working of the government.

2. COMPELLED SPEECH AND EXPRESSION

Compelled speech refers to a situation wherein the government compels

the individuals to express themselves, hold certain beliefs, or belong to

particular associations or groups.23 Indian denizens have seen such

instances recurrently, wherein some action has been forced upon them

by the government. For example, filmmakers and cinema hall owners

need to run advisories which warn the viewers about the injurious

effects of cigarette smoking. Students in primary schools are forced to

learn the regional language, irrespective of their interest in it. Recently,

something that did the rounds was the compulsion on cinema owners to

play the national anthem before the screening of any movie, and the

compulsion for the viewers to stand and pay their respect to the same.

It is in this context that we deal with the issue of compelled speech and

its impact on the free speech doctrine in India.

The Indian Supreme Court has ruled on this matter, and held that if the

government fulfils certain criteria, it can compel its citizens to speak

about certain things or act in a certain manner. The requirements for

the government to impose such conditions are – firstly, there shouldn’t

be a very heavy burden imposed on the speaker. Secondly, the message

being carried by the said speech should be informative, educational or

23 Tala Esmaili, First Amendment, WEX LEGAL ENCYCLOPAEDIA, June 2017,

https://www.law.cornell.edu/wex/first_amendment.



useful, and unconnected with political propaganda of any type. The

court dealt with this issue in the case of Union of India v. Motion

Pictures Association,24 wherein the government had imposed the

condition of mandatorily playing documentaries in cinema halls. In this

case, the Court ruled that since the duration of these films was relatively

short, it did not impose a heavy burden on the cinema owners. Further,

the purpose of this move was to promote education, news and scientific

knowledge, unconnected with partisan political propaganda. It is for

these reasons that the Court held that this compelled speech was

reasonable in nature, and did not violate the right of free speech granted

to individuals under the Constitution.

Even after such a clear test laid down by the Court, the government does

not seem to apply it, and comes out with some conditions which are quite

frivolous in their nature. One such order was the national anthem policy

in India, where it was mandatory to play the same before any movie

screening in cinemas, and people were to stand to pay their homage. The

Court argued that the aim behind this move of the government was to

“instil a feeling of committed patriotism and nationalism within one”.

However, this does not fulfil the second test, which was discussed in the

Motion Pictures case. Again, a fundamental question arose before the

Court about whether it is difficult for the public at large to comprehend

how playing the national anthem in cinema halls is going to encourage

or guarantee patriotism in the end. The Court later realised its mistake

and reversed the order.25

However, this issue still remains important in India because cinema

halls till date play the national anthem, and the people who do not wish

to stand for it are ridiculed and even beaten up by other people for not

being patriotic enough. The issue is as grave as a man being charged

with sedition in Kerala for not standing up when the national anthem

was playing, and another man in Mumbai being beaten by the public

24 Union of India v. Motion Pictures Association, AIR 1999 SC 2334. 25 India National Anthem no Longer Compulsory in Cinemas, BBC NEWS, Jan. 9,

2018, https://www.bbc.com/news/world-asia-india-42618830.



because his foreigner friend refused to stand up for the Indian national

anthem.26 This is highly problematic in nature, and the government

doesn’t seem to be doing much with respect to this.

3. SEXIST AND SEXUALLY ORIENTED SPEECH

Another problem which arises in India with respect to the free speech

doctrine is the issue of sexually oriented speech. One example of this

problem is pornography and its ban. Time and again, the Central

Government of India has tried to ban pornography sites, just like many

other states. However, it has never been able to retain any such law in

the long run. People have always argued against such an order being

violative of the rights granted to the citizens under Articles 19 and 21 of

the Constitution. When it comes to pornography, what remains a crime

is its circulation and sale, and not merely viewing it. It is only in the

case of child pornography that even the viewing of it has been held as a

crime, since it is reasonable to do so.

However, even in the recent times, we see how some telecommunication

networks tend to block these sites on their own when they provide an

internet connection to the people. For instance, a few months back, Jio,

a telecom services provider in India, blocked pornography on its internet

network. It is due to such acts that the issue of pornography becomes

prevalent in India when it comes to the question of freedom of speech

and expression. The makers and artists have a right to express

themselves, and a ban, as such, comes in direct conflict with such right.

Another way in which sexually oriented speech affects the public is in

the form of censorship imposed due to obscenity by the censor board of

India. In 2017, India saw the initial ban of a film titled “Lipstick Under

My Burkha” by the Central Board for Film Certification (CBFC) because

it had “contagious sex scenes” and was “too lady-oriented; their fantasy

26 Adrija Bose, Ugly Indian Patriot: Foreigner Refuses to Stand for National Anthem;

Mob Thrashes Indian Friend, FIRSTPOST, Oct. 21, 2014,

https://www.firstpost.com/india/sedition-charge-attack-youth-theatre-illegal-stand-

national-anthem-1766667.html.



above life”. The absurd and baseless reasoning continued, and according

to the Board, since the movie featured “abusive words, audio

pornography, and a bit sensitive touch about one particular section of

society”,27 it could not be certified for release.

As an Indian and a student of women’s issues, the author believes that

most of the times, Indian movies receive such a response from the CBFC

because of the inbuilt patriarchy of the system. There is always a

controversy when something women-oriented makes its rounds. The

definition of obscenity completely changes when it comes to the gender

it relates to, i.e. men and women. This is similar to the situation where

students of free speech often discuss whether the movie “Eyes Wide

Shut” should be allowed to be screened or not. The question before one

was whether a movie should be allowed to show naked men and women.

However, if such a discussion was to take place in the Indian society, it

would call for a straightaway ban from the CBFC. This is essentially

because there are too many sex scenes which might be inappropriate, but

if we try to look beneath the surface, we realise that the problem lies

with the female portrayal in the movie, and not the male. That is merely

the expansive impact of patriarchy within the society. It is similar to

how men can wear shorts to classes in some Indian colleges, but women

need to cover their arms and legs.

Thus, in situations like these, the reasoning behind the decisions of the

government becomes important. The Board likes to make the argument

that such movies, whether pornography or cinema, are disrespectful to

women, and thus, leads to their suppression in the society. However,

this is in major conflict with the right to free speech guaranteed to the

creators of these movies under the Indian Constitution. The government

relied on the limitation of morality in these cases, as well as the

maintenance of public order. However, morality, as a concept, is very

subjective.

27 Central Board of Film Certification Order No. DIL/662/2016-MUM/1244, dated

Jan. 25, 2017.



The questions which come up are whether the Board is competent to

judge the definition of what is morally acceptable and what is not.

Whose morality do we rely upon, considering that what is moral can be

highly subjective in a society as diverse as India? Who decides the

representation on the Board? How do we ensure a fair representation?

It is because of all these underlying issues that the whole idea of a ban

on pornography, and certain visual representations within movies,

becomes an issue in the Indian society.

IV. FREE SPEECH AND FIRST AMENDMENT UNDER THE U.S.

CONSTITUTION: A COMPARISON

Article 1 and the First Amendment of the United States Constitution

grants its citizens the right to free speech and expression. It allows the

individuals in the country to express themselves without the

government’s interference and regulation. However, just like in case of

India (as discussed above), even in the case of the United States, this

right doesn’t seem to be absolute. There have been certain restrictions

and limitations on this right, time and again. However, the First

Amendment and the Supreme Court require the government to provide

substantial justification for any interference they make with this right,

before regulating the content of the speech.

The following part of the paper would focus on the application of the

First Amendment doctrines upon the three issues identified above in the

Indian society, with respect to freedom of speech and expression, and

attempt to understand if the two are in synchronization with each other,

or completely distinguishable.

1. INCITEMENT OF ILLEGAL OFFENCES

The United States has evolved tests for this particular category over the

years. The tests have varied from the Clear and Present Danger Test to

the Reasonableness Approach to the Risk Formula Approach. However,

the latest test to be applied by the courts is called the Brandenburg Test,



which was derived in the case of Brandenburg v. Ohio,28 concerning the

Ku Klux Klan group. According to this test, the government needs to

meet certain requirements in order to convict anybody for incitement.

These requirements are: (a) an imminent harm, (b) a likelihood of

producing illegal action, and (c) an intent to cause imminent illegality.

The test has a lot of loopholes, as it leaves a lot of vagueness within it

and can be interpreted in various ways. However, that is a separate

issue altogether and not the focus of this paper.

It can be seen that this test differs significantly from the Indian position

on this matter. The Indian test is still very basic, just depending upon

the imminence of danger or violence. It is limited in scope and nature,

and does not look into other elements which might be relevant in

arriving at a decision that important. Especially considering the heavy

penalty attached to an offence, like sedition, the government should be

extremely careful when charging people under the same. The

Brandenburg Test goes beyond the scope of the tests which are applied

in India.

Under the Indian jurisprudence, if an act causes a certain level of

violence or has the potential to cause violence, the person committing

the act could be held liable for sedition. However, if we apply the

Brandenburg Test, we see more conditions which have to be met for an

act to be held as an act of sedition. The violence which the Indian

judiciary talks about needs to be imminent in nature. That means that

the action that the government fears should be an immediate action, and

not something that might happen after six months, after the people

engage in many more discussions/debates on that topic.

For instance, let’s look at the case of Arundhati Roy, who made certain

comments about Kashmir. Her comments did not pose any imminent

danger because her words were not of the nature to illicit an immediate

response from the public at large. Thus, the government would fail in

holding her liable in the beginning itself. Further, she had no intent of

causing any protests, strikes, violence, etc. On the contrary, her

28 Brandenburg v. Ohio, 395 US 444 (1969).



intention was to bring to light the reality of the situation so that the

government could work on it in order to bring about peace among the

people. Therefore, we can conclude that her speech lacked the intent to

cause an imminent illegality. Thus, it would be very easy for the

government to decide that she was not violating Section 124A of the IPC

in any manner.

The Brandenburg Test is quite comprehensive for the Indian system,

even though it has its own elements of faults. It could easily apply to the

Indian situation as it does not go against any of the Indian objectives in

any way whatsoever. The test would apply perfectly to the issue of false

accusations under the sedition laws in India, as it lays a clear guideline

for the government to apply before it can make any arrests under the

IPC.

2. COMPELLED SPEECH AND EXPRESSION

Earlier, even in the USA, the courts had upheld the power of the State

to expel certain students just because they did not comply with the rules

regarding paying allegiance to the flag of the United States of America,

even if it was against their religious beliefs to pay respect to anybody

other than their God and in any form whatsoever.29 However, in the

famous case of West Virginia State Board of Education v. Barnette,30 the

court overturned the decision taken in the Minersville case. In this very

progressive decision, Justice Jackson gave the decision solely on the

basis of the freedom of speech granted to individuals under the US

Constitution, and chose to ignore the religious arguments undertaken

by the parties. He based his decision on the Clear and Present Danger

Test. Unless the action of the students causes any danger, they cannot

be forced to do something they do not wish to do, as it restricts their

right to free speech and expression.

29 Minersville School District v. Gobitis, 310 US 586 (1940). 30 West Virginia State Bd. of Educ. v. Barnette, 319 US 624 (1943).



Time and again, the US Supreme Court has held speech compelling the

individuals to act in a particular manner to be violative of the First

Amendment rights. In the Indian case of paying allegiance to the

national anthem, we saw a similar situation wherein the Apex Court, in

its first order, held that it is compulsory for the people to stand up and

pay their respect. However, we later saw them reversing this order,

though no clear reasoning was given for the same.

If we apply the US doctrine followed by Justice Jackson in the Barnett

case to the Indian scenario of compelled speech, the order of making it

compulsory in the first place would not have taken place, because the

doctrine clearly states that there needs to exist an imminent and clear

danger arising out of the act of not complying with such an order. If we

apply the Barnett Test to the current scenario, we see that the order of

the government would be unconstitutional, as there exists no clear and

present danger from the act of the citizens of not standing up for the

national anthem. Further, if we apply this test to the situation of

screening of documentaries, we will find that order to be

unconstitutional as well. These documentaries are mostly about issues

of public importance, such as the injurious effects of smoking on human

health. There exists no clear and present danger if the people do not

watch these documentaries. In fact, there are very few people who get

affected by watching them.

Additionally, if the government really wanted to do this for the benefit

of the people, there are various other ways of doing it, like broadcasting

it on cable television, where there exists a bigger chance of people

watching it, or putting up multimedia hoardings at different public

places, where these documentaries can be played for people to watch.

Thus, there exists no reason for the government to make it compulsory

for these documentaries to be screened in cinema halls (only). We,

therefore, see that the US constitutional scheme of the First

Amendment provides a clear and concise test, which could be applied to

the situation in India, in order to ensure that people enjoy their

fundamental right to freedom of speech and expression.



3. SEXIST AND SEXUALLY ORIENTED SPEECH

Under the US First Amendment doctrine, we see that pornography,

barring two categories, is protected under the First Amendment. We saw

this in the case of American Booksellers Association Inc. v. Hudnut,31

wherein the court held that the Ordinance banning pornography was

unconstitutional. Obscenity and child pornography, however, do not

receive any protection under the First Amendment. This is intrinsically

similar to the position taken by the courts in India as well.

Obscenity has always been difficult to define and decide upon. A judge

of the US Supreme Court even went as far as saying that “he’ll know

what it is when he sees it”.32 This points to the problem faced by the

courts when it comes to cases concerning sexually oriented speech and

expression. Similarly, the courts in India have also found it difficult to

define what obscenity is and what amounts to obscenity. It would be safe

to say that the two jurisdictions are on the same path when it comes to

interpreting the conflict between sexually oriented speech and the

doctrine of free speech.

A US court once applied the Hicklin Test to these situations, wherein

the court looked at “whether the tendency of the matter is to deprave and

corrupt those whose minds are open to such immoral influences, and

into whose hands a publication of this sort may fall”.33 If we apply this

test to the Indian situation, the result would still be the same. The

government would argue that a movie like “Lipstick Under My Burkha”

will deprave the mind of young women, and make them act in a manner

wherein their desires come above their lives and the wants of others. As

we have discussed earlier, this is because of the patriarchal mindset of

the society, wherein the goal is to look at the negative in women, instead

of seeing how a movie like this would help them to establish their wants

and desires, and be comfortable in their own skin.

31 American Booksellers Association Inc., et al. v. William H. Hudnut, 771 F.2d 323

(1985). 32 Justice Potter Stewart, Jacobellis v. Ohio, 378 US 187 (1964). 33 Regina v. Hicklin, LR 2 QB 360 (1868).



However, the Miller Test, which is the latest position of law on this

subject, would lead to a completely different result in the Indian society.

The movie had a lot of artistic, philosophical and psychological value and

had a meaning within it. It was not offensive in any manner whatsoever

as per any of the applicable laws in this regard. A common man would

not find anything problematic per se with the movie. Thus, there exists

no ground for it to be referred to as obscene, and thus, be banned. This

test offers a more wholesome approach, and helps us test the situation

in a better manner, keeping in mind things which go way beyond the

public perception of morality and immorality.

V. A SUGGESTED COMPREHENSIVE SYSTEM OF SPEECH

AND EXPRESSION

1. WHY WE NEED LIMITATIONS TO THE CONCEPT OF FREE SPEECH

As Hobbes argues, all human beings are inherently nasty and evil. If

one gives them something, they will always find a way to misuse it.

Similarly, when you give humans the right to free speech, they are more

probable than not to misuse this right. An example of this would be

when a terrorist organisation tries to preach its ideologies to other

people. For them, they have the right to say whatever they want, but

whatever they say is not beneficial for the society at large. A world with

complete freedom of speech and expression would be one of chaos, where

people might be constantly hurting one another with their words and

conduct, which could lead to a lot of resentment amongst them. Further,

this could lead to unnecessary arguments and fights among people,

which would mean never-ending litigation in the long run. Thus, in such

a situation, the regulation of speech is highly important.

Further, in a democratic and secular society, where people have

different beliefs and mindsets, some speech might be offensive for a few,

and some to the others. It is smart if we establish some ground rules in

order to respect the views of everybody in the society. Therefore, where

the speech becomes hateful and inconsiderate, it should be restricted in

some manner.



Another area where the author believes that speech should be restricted

is when it comes to sexually offensive speech. The author firmly believes

that, in today’s world, one should think twice before saying anything

that perpetuates the archaic and patriarchal undertones existing in the

society, as it has taken us a lot of time to emerge from it. There are still

many issues prevalent in the society today which show us how we have

still not reached a level of complete equality. Therefore, any speech that

undermines the position of women, queers and transgenders in the

society should be restricted and not allowed. In this regard, the author

would be in favour of banning pornography, even when it pertains to

adult pornography, because it is always portrayed as objectifying the

woman, and that is extremely problematic. For instance, the presence of

pornography which it makes it look like the sexual act is forced

normalises rape culture amongst the viewers.

However, pornography where people are treated as equals should not be

a problem, as the only concern with pornography is about the

perpetuation of degradation of women; no moral or religious

connotations against sex, in general, are the reasons for saying so. For

example, feminist pornography (a type of pornography) would be

completely acceptable under this system of speech.

Thus, it remains the argument of this paper that speech needs to be

regulated, but not necessarily restricted. The author believes that

regulation is intrinsically different from restriction. It is not necessary

that every regulated speech is restricted speech.

2. HOW TO DEAL WITH THE THREE ISSUES AND THE TESTS APPLIED

Under the system of speech and expression being proposed by the author

in the following section of this paper, the first issue of sedition would be

dealt with in a manner where intention would not be considered by the

courts. This is because when a person says something, he intends to

mean everything he or she says, especially in situations where it is

planned. That is the basic purpose of speech.



Even if one accidentally says something, one does think about it for him

or her to be able to state it. For instance, in a rally where a person is

speaking, he or she has thought about what they will say. Even though

some of the things might be said in the spur of the moment, they would

still conform to a pre-thought-out flow of things. However, the conditions

of imminent danger and likelihood of causing an illegal act would still

remain, as they do under the Brandenburg Test. Thus, the test applied

would be very similar to the Brandenburg test, minus the element of

intention to cause imminent danger.

When it comes to the issue of compelled speech, the State would not be

able to compel the citizens to say and/or do something in a particular

way which the citizens do not wish to do themselves. Under this system

of speech, there wouldn’t be a requirement of any test other than that of

absolute necessity, because until and unless it is absolutely required

of the government to impose something on the citizens, they shouldn’t

do it.

Thus, in every other situation, an order of the government imposing

some speech or conduct on the citizens would be completely

unacceptable. Unlike the US Barnett Test, this test does not use the

words clear and present danger. I believe that absolute necessity can only

be qualified by the presence of clear and present danger. However, it just

opens up scope for other situations as well. For instance, the

documentaries on smoking would be allowed under this system, because

they are absolutely important in a society where an extremely high

number of people are dying because of lung cancer and tuberculosis,

caused due to smoking, and even a small or minute change that can be

brought about matters. Thus, it expands the scope of the Barnett Test,

but not in a wrong way.

Lastly, for the issue of sexist and sexually oriented speech, this system

of speech would have a zero-tolerance policy. There would be

restrictions on sexually oriented speech only when the speech is sexist in

nature. Other than that, there would be no restrictions on sexually

oriented speech. Everything would be acceptable, unless and until it



violates the rights of women to live with dignity and exercise control

over their bodies. Therefore, pornography would also be banned to the

extent that it diminishes the position of women in the society by

objectifying them. Unless that is the case, pornography would be

allowed, and so would movies that cover sexual themes and scenes. This

test remains completely distinct from the Miller Test applied by the US

Courts, which follows a three-step review of all the acts of the State, as

discussed earlier. Thus, it provides more freedom to the citizens, and

imposes an absolute ban in only one situation.

3. STRENGTHS AND WEAKNESSES OF THIS MODEL

The main strength of this model of speech, as has been explained above,

is that it protects the freedom of speech and expression to the maximum

extent possible, and provides a lot of rights to the citizens of the nation.

However, it still takes into consideration the concerns which the

government has, and tries to accommodate them while ensuring that the

right of the people is maintained to the extent that is reasonably

possible. It attempts to create a balance between these two extreme

situations.

However, this system lacks tolerance for art in some aspects. For

instance, in the case of sexually oriented speech, this stance might come

off as extremely strong to some people, even though there exist certain

valid reasons for keeping things the way they are. Some people might

regard certain artists making paintings or movies to be extremist in

nature. However, in the author’s opinion, it is not yet time to have

complete freedom relating to such issues in a society like India.

VI. CONCLUSION

After taking into consideration the problems being faced by the Indian

society with respect to free speech, and its treatment domestically, it can

be seen that the Indian system is becoming synchronized with the US

standards, with the progress of time. There are various similarities



between the holdings of the two judicial systems, even though the

reasoning behind these decisions might differ for the two.

The system which is suggested hereinabove differs a lot from both the

Indian and the US standards. The system provides more freedom to the

citizens, with lesser restrictions on their conduct. In fact, it tries to

provide the citizens with the right to freedom of speech and expression

in its true sense.



SUPREME COURT’S JURISPRUDENCE ON THE

WEDNESBURY PRINCIPLE

Krithika Srinivasan & Aarti Krishnan†

ABSTRACT

This paper primarily focuses on the study and

detailed analysis of the Wednesbury Principle, and

the evolution of this principle making use of the aid

of various judgments of the Supreme Court. It would

further discuss the importance of judicial review of

administrative action in the realm of administrative

law and how any unjust or unfair action ought to be

rectified by exercising the power of judicial review.

Moreover, the paper would also briefly discuss about

judicial review as an element of the basic structure

of the Constitution of India, which cannot be

invalidated even by an amendment made to the

Constitution of India. Also, it would trace the

transition from the Wednesbury Principle to the

doctrine of proportionality, which holds that a

government action may be only as intrusive as is

necessary for the achievement of a vital public

purpose, in multiple common law countries where

this principle was earlier being followed, including

India.

This paper would further analyse the general and

specific application of the Wednesbury Principle and

how it operates as a ground for judicial review of

administrative action. Furthermore, it provides for

the interpretation of the term reasonableness

necessary for the application of this principle. It

would conclude with a comprehensive analysis as to

† 4th year law students at Symbiosis Law School, Hyderabad.

The authors may be reached at [email protected] and

[email protected], respectively.







how the Wednesbury Principle has been shaped by

the Apex Court’s own jurisprudence.

I. INTRODUCTION

The essence of the Wednesbury Principle lies in the idea that the

exercise of powers by the judiciary should not be in such a manner that

it would seize or assume the powers of the public authorities with whom

such powers vest.1 Irrationality was developed as a criterion for judicial

review of administrative action in the landmark case of Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation.2 With the

development and rapid growth in the field of administrative law and the

increasing need to keep a check on the abuse of certain discretionary

powers available to administrative authorities, the courts have evolved

principles to achieve the same. If an administrative action is irrational,

contrary to the law or unreasonable, it would attract judicial

intervention through the medium of judicial review. One such principle

which has evolved through the interpretation of the courts is that of

Wednesbury Unreasonableness.

A decision which is based solely on unreasonable or

irrational grounds to such an extent that no prudent man

acting reasonably would have possibly given such a

rationale is considered to be a decision which is Wednesbury

unreasonable.

The term unreasonableness has more than just one meaning. It is

capable of encompassing within its scope various grounds such as the

acts done by an administrative authority on the basis of irrelevant

considerations or an act which is mala fide or acts done for an improper

purpose. Similarly, unreasonableness could also mean that even though

an administrative authority has acted in accordance with the law, it has

assigned more emphasis upon certain factors more than what they

1 H.W.R. WADE & C.F. FORSYTH, ADMINISTRATIVE LAW (11th ed. 2014). 2 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) I KB

223 (CA).



deserved, in comparison to the other relevant factors. Further,

unreasonableness could also provide a ground for judicial intervention,

where any statute or the Constitution of India so requires. The standard

of reasonableness is a highly subjective concept, because even two

reasonable and prudent persons are capable of arriving at opposite or

varying conclusions due to their individual ideas in relation to the

reasonableness of a decision.

II. IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW

OF ADMINISTRATIVE ACTION

1. INTRODUCTION

Judicial review of administrative action is a feature naturally enshrined

in the scheme of our Constitution, and has been developed on the

touchstone of the principles of rule of law and separation of powers. The

feature of judicial review plays a vital role in seeing to it that the powers

and privileges given to administrative authorities are not exceeded.

Earlier, judicial review of administrative actions could be carried out

only on the basis of irrationality, illegality, and procedural impropriety.

However, with the passage of time and significant developments in the

realm of administrative law, the Courts have departed from this

principle being applied only on the abovementioned grounds. The main

purpose of the concept of judicial review of administrative action is to

obtain an equitable balance between the discretion of administrative

authorities to take decisions with respect to certain matters in

accordance with the government policy and the requirement of fairness.

2. OPERATION OF IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW

The rationality of the decisions taken by an administrative authority is

based upon the following criteria:

a. If such a decision is arrived at without the authority of the law;

b. If such a decision is based upon no sound evidence;



c. If such a decision is dependent upon some irrelevant and additional

consideration;

d. If such a decision is so grossly defying logic or the established rules

of moral standards such that no reasonable person would arrive at

such a conclusion;3 or

e. If such a decision is so unreasonable that it can be said to be done in

bad faith.

Within its ambit, irrationality may include the consideration of

irrelevant material, ignorance of relevant considerations, usage of power

for improper purposes, and the mala fide exercise of powers. Yet, when

understood in a substantive sense, it refers to an administrative action

which is so irrational that it could not have been taken by any public

authority.

Keeping in mind the role of the judiciary in using irrationality as an

operative ground for judicial review of administrative action, it is also

important to place certain limits upon such intervention. This means

that it is not up to the courts to impose their choice regarding the

exercise of discretion with respect to an administrative authority, and

to take up the matter and reassess it. Further, in the case of R v.

Cambridge Health Authority,4 it was clarified by the court that the task

of substituting a judgement is beyond their assigned powers. In the

present case, the court was of the opinion that success or failure of the

medical treatment was not to be decided by the court. The only matter

of concern of the court would be regarding the lawfulness of the given

decision to be scrutinized.

Though it has been established that courts do not have the power to

substitute a judgement, it is also a well-recognised fact that the courts

are vested with the power to scrutinise the rationality of a decision

which has been made by an administrative body.

3 Lord Diplock in GCHQ v. Ministry for Civil Services, (1985) AC 374. 4 R. v. Cambridge Health Authority, (1995) 2 All ER 129.



The word unreasonableness has been explained in two different senses

by Lord Greene MR in the landmark case of Associated Picture Houses

Ltd. v. Wednesbury Corporation. Firstly, this term was used to

determine the different grounds on the basis of which the legality of the

actions of public authorities may be challenged. In an umbrella sense,

this term was, therefore, used to denote actions relating to irrelevancy

and illegality. Secondly, unreasonableness was also given a substantive

meaning, wherein even a decision which passed through the hurdles of

relevancy may be invalidated by virtue of the Wednesbury Test, as

discussed above.

III. APPLICATION OF WEDNESBURY PRINCIPLE

1. INTRODUCTION

The Principle of Wednesbury Unreasonableness plays a very crucial role

with respect to exercising control over discretion. The operation of

irrationality as a ground for judicial review of administrative action

revolves around the concept of rule of law, non-arbitrary exercise of

power and reasonableness. Any administrative action which goes

against any of the abovementioned principles would be quashed by the

court on grounds of being in violation of the golden triangle, that is,

Articles 14, 19 and 21 of the Constitution of India.

In cases where the need for reasonableness is not specified explicitly, its

requirement has been woven into every administrative action in an

implied manner by the courts, because an administrative action should

not be arbitrary, irrational or subjective in nature. Hence, where an

administrative authority is permitted by law to take an action in any

manner as it deems fit, it has been interpreted by the judiciary to imply

in any manner as it reasonably deems fit.

2. GENERAL APPLICATION OF WEDNESBURY PRINCIPLE



The test of irrationality or the Wednesbury Principle has been utilized

by the courts even in the adjudication of disputes not pertaining to the

violation of fundamental rights. For instance, the Wednesbury Test has

also been applied for the invalidation of certain conditions with respect

to planning permission. Making use of this principle, the need for the

construction of an ancillary road across the front of a site of which the

right to access is to be given to others, which is a compulsory duty of a

developer, was quashed.5

In the case of R v. Boundary Commission for England Ex. P. Foot,6 the

Wednesbury Test was applied even with respect to industrial relations.

However, the determination of the reasonableness of the subject matter

in question is to be done in a careful and cautious manner, keeping in

mind the notions put forth by Lord Greene MR. Also, in the case of R v.

Bridgnorth DC Ex. P. Prime Time Promotions Ltd.,7 the Court applied

the test of Wednesbury Unreasonableness in a manner so as to ascertain

the belief of the court in relation to the degree of reasonableness in the

way in which the discretion was exercised.

Moreover, in the case of R v. Parliamentary Commission for

Administration Ex. p. Balchin,8 Justice Sedley put forth that a decision

may be considered as (Wednesbury) unreasonable if it contained an

error in its reasoning, which would take away the logical integrity of

such a decision. If the error of the kind mentioned above is capable of

being highlighted, then there is no requirement on the part of the

applicant to prove that the decision maker was temporarily unhinged.

In the subsequent case of R v. North and East Devon Health Authority

Ex. p. Coughlan,9 it was held by the Court that the aspect regarding the

rationality of a decision includes decisions arrived at by flawed logic as

well as those defying comprehension.

5 Halls Co. Ltd. v. Shoreham by Sea Urban, (1964) 1 WLR 240. 6 R v. Boundary Commission for England Ex. P. Foot, (1983) QB 600. 7 R v. Bridgnorth DC Ex. P. Prime Time Promotions Ltd., (1987) 1 WLR 457. 8 R. v. Parliamentary Commission for Administration Ex. p. Balchin, (1997) COD

146. 9 R v. North and East Devon Health Authority Ex. p. Coughlan, (2001) QB 213.



In the case of R v. Secretary of State for the Home Department Ex p.

Daly,10 it was suggested by Lord Cooke that, at a future date, it would

be realized that the Wednesbury Principle is, in fact, a retrogressive

decision in the field of English administrative law, to the extent that

there were several degrees of unreasonableness, and only the highest

degree of such unreasonableness would render the decision of an

administrative authority as judicially invalid.

3. SPECIFIC APPLICATION OF WEDNESBURY PRINCIPLE

In cases wherein rights have been the concern, there has often been a

variation in the intensity in the application of the Wednesbury Principle

by the courts. Therefore, it is now a well-recognised aspect that the

courts utilise judicial review, which includes the Wednesbury Test, and

the degree of intensity of the application of the same would depend on

the subject matter of the dispute in question. It was held by Lord Bridge,

in the case of R. v. Secretary of State for the Home Department Ex p.

Brind,11 that in disputes where a person’s rights are at stake, the court

should depend on the threshold as to whether such a decision could have

been reasonably made by a reasonable Secretary of the state. The

inception of the inquiry must be traced by the court according to the idea

that the violation of a right would only be justified where there is a

compelling public interest.

According to Lord Diplock, the notion underlying the traditional

Wednesbury Principle is the requirement of the courts to be aware of

their restricted role. The premise which majorly shaped the Wednesbury

Principle was the aspect that the Parliament had assigned certain

political and social powers to the administrative authorities, and such

powers were not be assumed by the judiciary when dealing with disputes

relating to such authorities.

10 R. v. Secretary of State for the Home Department Ex. p. Daly, (2001) 2 A. 532. 11 R. v. Secretary of State for the Home Department Ex. p. Brind, (1991) 1 AC 696.



The manner in which this principle would be applicable in cases wherein

rights are the matter of concern would be by examining as to whether

the decision was made out of an approach which would be applicable to

any rational decision maker.

IV. THE WEDNESBURY UNREASONABLENESS VERSUS THE

DOCTRINE OF PROPORTIONALITY

1. INTRODUCTION

The power of the courts to judicially review an administrative action is

not equivalent to its power as a court of appeal. During the course of

judicial review, the court merely reviews the procedure involved in

making the concerned decision by making use of the Wednesbury Test.

In the case of Fruit Commission Agents Association v. Government of

Andhra Pradesh,12 it was held by the Supreme Court, in reiteration of

the abovementioned principle, that the rent which has been fixed would

be an administrative function, and therefore, the Court cannot exercise

its appellate powers upon administrative decisions. Intervention by the

judiciary would be permissible only upon the application of the

Wednesbury Principle.13 On the other hand, the doctrine of

proportionality is a concept wherein the primary concern of the court is

to examine the procedure, manner or method utilized by the decision-

maker to arrive at a given conclusion, or the decision in question. Thus,

the doctrine of proportionality places its focal point on the elaboration of

the rule relating to permissible priorities.

2. APPLICABILITY OF THE DOCTRINE OF PROPORTIONALITY IN INDIA

The application of this doctrine was first considered by the Apex Court

in the case of Union of India v. G. Ganayutham,14 in which it was pointed

12 Fruit Commission Agents Association v. Government of Andhra Pradesh, (2007) 8

SCC 511. 13 XLIII P PUNEETH, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 7 (2007). 14 Union of India v. G. Ganayutham, (1997) 7 SCC 463.



out that the Wednesbury Principle would be a guiding factor in India,

except in matters where fundamental rights are involved. However, the

applicability of the doctrine of proportionality in relation to the cases

involving the violation of fundamental rights was refrained from being

addressed by the Court. Subsequently, in the landmark case of

Omkumar v. Union of India,15 it was realized by the Supreme Court that

the doctrine of proportionality was a long found concept and was being

applied with respect to adjudication of matters relating to the

infringement of the fundamental rights enshrined in Articles 14, 19 and

21 of the Constitution of India. Upon extensive review, the Supreme

Court arrived at the conclusion that any administrative action against

the fundamental rights under Articles 19 and 21 of the Constitution of

India would always be tested against the doctrine of proportionality,

though it may not have been expressly provided that the proportionality

principle is being applied. With specific reference to Article 14 of the

Constitution of India, the Court held that when the action of the

administrative authority is claimed to be discriminatory, a preliminary

review would be carried out by the courts, making use of the doctrine of

proportionality. However, when the action of the administrative

authority is claimed to be arbitrary, the Principle of Wednesbury

Unreasonableness would apply.

However, post the Omkumar case, there has hardly been any

advancement with respect to the doctrine of proportionality, except for

the fact that certain subsequent judgments16 have demonstrated the

transition from the Wednesbury Principle to the doctrine of

proportionality.

3. RELATIONSHIP BETWEEN THE WEDNESBURY PRINCIPLE AND THE

DOCTRINE OF PROPORTIONALITY

15 Omkumar v. Union of India, AIR 2000 SC 3689. 16 Indian Airlines Ltd. v. Prabha D. Kanan, AIR 2007 SC 548; State of U.P. v. Sheo

Shankar Lal Srivastava, (2006) 3 SCC 276.



The wide boundaries of the external composition of judicial review were

put forth by Lord Diplock in the landmark case of Council of Civil

Service Unions. v. Minister for the Civil Services,17 as follows:

irrationality, illegality, and procedural impropriety. This was said to be

the tripartite classification which demarcated the external structure of

judicial review. Further, it was held by Lord Roskill that this tripartite

classification would not be exhaustive or mutually exclusive.18 The

transition may be accommodated with regards to the major

developments within the sphere of judicial review, which includes the

changes in the aspect of jurisdiction and the decline of immunities and

prerogative powers. However, these variations could be properly

accommodated within the tripartite classification developed by Lord

Diplock.19

Another mode of keeping administrative discretion under control is

through the doctrine of proportionality. It was stated by Lord Diplock,

in the case of R v. Goldsmith,20 that “you must not use a steam hammer

to crack a nut if a nut cracker would do”. Broadly, the doctrine of

proportionality holds it necessary that a government action should be

only as intrusive as is required to achieve a vital public purpose.

However, contrary to the Principle of Wednesbury Unreasonableness,

this doctrine acts as a useful tool of judicial review as a result of the

objective criteria provided for analysis. In the current scenario, the

doctrine of proportionality is regarded as an additional ground of judicial

review under the branch of irrationality.

Thus, from the above comparison, it is evident that the doctrine of

proportionality and the Principle of Wednesbury Unreasonableness both

fall under the concept of irrationality. At the beginning, the doctrine of

proportionality merely operated as a competitor to the traditional

Wednesbury Test. But due to the advancement in the doctrine of

17 Council of Civil Service Unions. v. Minister for the Civil Services, (1984) 3 All ER

935. 18 Wheeler v. Leicester City Council, [1985] AC 1054. 19 XXXIX M P JAIN, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 10 (2003). 20 R v. Goldsmith, (1983) 1 WLR 151.



proportionality and due to its high degree of objectivity, it gained

momentum, and therefore, was sought to completely replace the

Wednesbury Principle, operating as the only branch of review within the

concept of irrationality.

V. THE SUPREME COURT’S JURISPRUDENCE ON THE

WEDNESBURY PRINCIPLE

1. INTRODUCTION

It is an evident and established fact that judicial pronouncements act as

a major foundation of administrative law. The judiciary has developed

various concepts of administrative law with the help of several cases and

judicial decisions. The evolution of a majority of the doctrines, theories

and principles of administrative law, including the Principle of

Wednesbury Unreasonableness, have resulted because of the acts of the

judiciary done with an intent to ensure accountability, transparency,

fairness and participation within the administrative functions and

processes. Most of the principles of administrative law have been a

result of the ingenuity and creativity of the judiciary.

Over the past few decades, the Indian judiciary has played a major role

in contributing to the evolution, application and development of these

theories and principles of administrative law.

2. JURISPRUDENCE OF THE SUPREME COURT

In the case of Union of India v. Lt. General Rajendra Singh Kadyan,21 it

was held by Justice Rajendra Babu that the concept of judicial review is

related to scrutinizing whether the procedure applied to arrive at the

decision in question is proper, and not the final judgment in itself. The

Courts cannot go through the concept of judicial review when it is

explicit that the administrative action in question is not arbitrary, and

has been developed on the basis of relevant criteria, and also where

21 Union of India v. Lt. General Rajendra Singh Kadyan, (2000) 6 SCC 698.



there is a nexus between such an action and the facts of the dispute in

question.22

Further, in the case of Munna Roy v. Union of India,23 the appellant who

was shortlisted to fill a position was not appointed for the same. An

application was filed by her in the Central Administrative Tribunal.

While the application was pending, the panel involved in the selection

process was scrapped on account of irregularities. It was held by the

Supreme Court that the courts could intervene if the grounds on which

the decision was taken were erroneous, though the fact that her name

was included in the shortlist did not bestow any right upon her to be

selected. In the present case, the action of scrapping the selection panel

was considered to be arbitrary and irrational by the Court.

Applying the test of Wednesbury Unreasonableness, in the case of

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,24

it was held by the Court that the acts of the government regarding the

punishment of censure was without jurisdiction, and also arbitrary in

nature.25 According to the Court, the above action was an excessive

exercise of discretionary power, and the only alternative could be to ask

the officer to acquire the sanction well in advance. The appeal was

allowed by the Court on grounds that the formal requirements were only

slightly infringed, and therefore, did not constitute as a sufficient

ground for the issuance of a censure order. Also, it would not be a ground

for holding the person ineligible for promotion.26

22 XXXVI A K GANGULI, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 15

(2000). 23 Munna Roy v. Union of India, (2000) 9 SCC 283. 24 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947) 2 All

ER 680. 25 Ganguli, supra note 22, at 7. 26 “If, in the statute conferring the discretion, there is to be found, expressly or by

implication, matters to which the authority exercising the discretion ought to have

regard, then, in exercising the discretion, they must have regard to these matters.

Conversely, if the nature of the subject- matter and the general interpretation of the

Act makes it clear that certain matters would not be germane to the matter in

question, they must disregard those matters.”



Also, in the case of Union of India v. Rajesh PU Puthuvalnikathu,27 the

Apex Court ruled that there existed no sound justification to the denial

of the opportunity of appointment to the other candidates who were

selected in a manner which was not flawed, as there were only 31

specific candidates whose appointment was tainted.28 One of the

important inferences derived out of this case is that the concerned

decision of the administrative authority to cancel the complete selection

list could not be considered to be flawed, on the application of the

Principle of Wednesbury Unreasonableness. The above decision is not

capable of being regarded as a decision which is so irrational or

unreasonable that no prudent individual is capable of understanding

how it lies within the limits of its authority. However, it was still

regarded as an arbitrary and unreasonable decision by the Court. This

implies that a milder condition of unreasonableness, as compared to the

Wednesbury Principle, was applied by the Courts.

In the case of Roberts v. Hopwood,29 the court held that a local authority

was bound to exercise its discretionary power regarding the payment of

“such wages as it may think fit” in a reasonable manner. Payment of £4

being made to a worker of the lowest grade on a weekly basis was

considered to be so unreasonable as to render ultra vires, despite the

general conception behind such a discretionary power.

The words “may think fit” was interpreted by Lord Wrenbury to mean

“may reasonably think fit”. According to his opinion, the presence of the

word reasonably or reasonable did not matter or made no difference

since “a person in whom is vested a discretion must exercise his discretion

upon reasonable grounds. Discretion does not empower a man to do what

he likes merely because he is minded to do so- he must in the exercise of

his discretion do, not what he likes, but what he ought to do. He must act

reasonably.”30

27 Union of India v. Rajesh PU Puthuvalnikathu, (2003) 7 SCC 285. 28 Jain, supra note 19, at 13. 29 Roberts v. Hopwood, (1925) AC 578. 30 M.P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (6th ed. 2013).



Furthermore, in the case of Hall & Co. v. Shoreham UDC,31 the plaintiff

was granted a planning permit by the defendant on the condition that a

road would be constructed on his land for the dedicated use of the public.

In case of any loss of the land which was to be used for the construction

of the road, the plaintiff would be entitled to no compensation. This

condition was held to be void on account of unreasonableness by the

court. The manner in which the defendant chose to execute the deal was

considered to be utterly unreasonable. No proper and clear authority was

found by the court supporting the imposition of such a condition.

In the case of Chairman, All India Railway Recruitment Board v. K.

Shyam Kumar,32 the order passed by the High Court was challenged by

the appellants, whereby a direction was given to the Board to proceed

with the process of recruitment to be carried out on the basis of a written

test conducted earlier, against which there existed allegations of

malpractices and irregularities. Consequently, the decision of the Board

with respect to the conducting of a re-test was ruled to be in violation of

Articles 14, 16 and 21 of the Constitution of India. In arriving at the

abovementioned decision, the High Court relied upon the Principle of

Wednesbury Unreasonableness. However, the decision of the Board with

respect to conducting a re-test was upheld by the Supreme Court, by

applying the two principles, i.e. the Principle of Wednesbury

Unreasonableness and the doctrine of proportionality.33

The Apex Court ruled that the consideration of the materials which

aided in the leakage of question papers as limited and as not serving as

a nexus to the allegations of irregularities was incorrect and erroneous

on the part of the High Court. A minor leakage of the question papers

would also constitute a sufficient ground for the written test to be set

aside and proceed with conducting a re-test as this would help in the

achievement of the ultimate objective, which is that of fair selection.

31 Hall & Co. v. Shoreham U.D.C., (1964) 1 All ER 1. 32 Chairman, All India Railway Recruitment Board v. K. Shyam Kumar, (2010) 6

SCC 614. 33 XLVI S.S. JASWAL, ADMINISTRATIVE LAW, ANNUAL SURVEY OF INDIAN LAW 16

(2010).



Therefore, a direction was issued to the Recruitment Board regarding

the regularization of the results obtained in the second test conducted,

and the appointment of the candidates who have been selected through

the same.

Further, it was also held by the Court that the Principle of Wednesbury

Unreasonableness was to be applied with respect to decisions which are

so unjustifiable, with regard to their opposition to ethical and moral

standards or logic, that no rational person who has applied his prudent

mind to issue in question could have possibly arrived at such a

conclusion. Contrastingly, the doctrine of proportionality was a more

fastidious and precise form of a legal test, as compared to the test of

reasonableness. The Apex Court observed that as per the current

scenario, it was the doctrine of proportionality which was more

prevalent, but it believed that the Wednesbury Principle had not yet

reached its point of exhaustion or judicial burial, though it was soon to

happen in the future. The Court further went on to put forth that it

would not be safe to arrive at the conclusion that the Wednesbury

Principle has been completely replaced by the doctrine of

proportionality, differing from the opinion of the Supreme Court itself

on various previous occasions.34

VI. SUMMARY OF FINDINGS

The case of Associated Provincial Pictures Houses Ltd. v. Wednesbury

Corporation gave rise to the Principle of Wednesbury Unreasonableness.

Since then, this principle has played a pivotal role in ensuring the proper

34 State of Uttar Pradesh v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 – “We

are not oblivious of the fact that the Doctrine of Unreasonableness is giving way to the

Doctrine of Proportionality. The Wednesbury Principle may not now to be held to be

applicable in view of the development in Constitutional law in this behalf.”; Indian

Airlines Ltd. v. Prabha D Kanan, (2006) 11 SCC 67 – “Furthermore the legal

parameters of judicial review have undergone a change. Wednesbury Principle of

Unreasonableness has been replaced by the Doctrine of Proportionality.”; Jitendre

Kumar v. State of Haryana, (2008) 2 SCC 161 – “In certain jurisdictions, the Doctrine

of Unreasonableness is giving way to the Doctrine of Proportionality.”



and effective practice of the Doctrine of Separation of Powers. This is

because the Wednesbury Test lays down an ideal foundation which

clearly defines the circumstances in which judicial intervention with

respect to administrative actions would be permissible, and in what

cases this principle ought not to be used as an excuse to interfere in the

powers and concerns of administrative authorities. In this manner, it

imposes checks and balances upon the exercise of discretionary powers

by the administrative authorities.

The limitation upon the concept of judicial review is dependent upon the

legality of the order passed by an administrative authority, or the

decision-making power of such an authority per se. In the course of

defining the parameters within which the concept of judicial review of

administrative action operates, the deficiency in the process of decision-

making utilised by an administrative body is to be considered rather

than the decision in itself. Interference by the courts would not be

justified except in cases where the decision in question is so illogical, or

characterized by such procedural impropriety, or is of such a nature so

as to shock the conscience of the judicial system.

The Wednesbury Principle has evolved and undergone major changes,

which have been shaped by the Supreme Court’s own jurisprudence.

Despite the significant role played by this principle in administrative

law, it has been said to have become obsolete and been replaced by the

doctrine of proportionality to provide better protection to individuals

against the exploitation by administrative authorities. However, in

recent judicial pronouncements, it has been stated that the doctrine of

proportionality is a supplement and not a substitute to the Principle of

Wednesbury Unreasonableness. This view of the Supreme Court has

been widely adopted and accepted with respect to the changing trends

in the sphere of administrative law.



A NOTE OF THANKS

The Editorial Board, Coordinators and the Publishing Unit of the Indian

Constitutional Law Review seek to express their gratitude to all

members, contributors, advisors and well-wishers who have been

immensely important to the growth and evolution of the constitutional

law landscape of India and who continue to be involved in the discourse

surrounding it.

We express our heartfelt gratitude to all Members who have provided

their valuable time and incisive insights in the framing of this edition.

Finally, a special thank you to the editors who have played a crucial role

in the development and outcome of this publication. This would not have

been possible without every one of you.

Savyasachi Rawat

Editor-in-Chief

On behalf of the esteemed members of the Editorial Board, the

Coordinators, and the Publishing Unit.

Documents

ISSN: 2456-8325 - iclrq.iniclrq.in › editions › Ed-09.pdf · ISSN: 2456-8325 Sameer Avasarala Founding Editor Anubhuti Maithani Publishing Editor Savyasachi Rawat Editor-in-Chief