Fundamental Rights

17
Feb

Financial constraint is not an answer for the constitutional duty-Right to Education Article 21A

Post Written by : Shivam Kumar Gupta

“Democracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education.”– Franklin D. Roosevelt

Education is the most important thing for the complete development of the society and in that regard, The Constitution of India (Article 21 A and Article 45) and the Right to Children to Free and Compulsory Education Act of 2009, have came with the objective for free and compulsory education to all Children within age group of 6 to 14. After the National Policy of Education (NPE), announced in 1986, this work of providing the education to all children got the speed in motion of work. As the Article 21 A of the Constitution which read as “ The State shall provide free and compulsory education to all the children of age of six to fourteen years in such manner as the State may, by law, determine” came by the 83rd Amendment 1997 by getting inserted in the Constitution as Article 21 A.

Read: Whether judicial order can violate Article 21

Providing the education is the State obligation as in the case – “Right to education till children complete the age of 14 years being a fundamental right, the aided private Middle Schools and Senior Secondary Schools are concerned, the State Government is again under an obligation to provide education to children studying in these schools who are fourteen years of age or less. The net result is that even in High Schools and Senior Secondary Schools, upto 8th/9th class- the students being 14 or below – the State Government is bound to provide free educational and bound to meet total expenditure of the school to that extent. Financial constraint is not an answer for the constitutional duty.” In State of H.P. v. H.P. State Recognized and Aided Schools Managing Committee, (1995) 4 SCC 507: JT (1995) 8 SC 406

And it has been told further in Maria Grace Rural Middle School v. Government of T.N. (2006), wherein it was held that the right to receive grant-in-aid for the establishment and administration of schools is not a right.

And if the increase of tax is even done by the State, that will not defeat the constitutional objective of free and compulsory education. “Increase of tax for educational institutions vehicles by multiples does not defeat the constitutional objection of free and compulsory education under Article 21-A of the constitution. Merely because institution are imparting education, does not mean that they are not liable to pay vehicle tax towards cost and maintenance of roads” (Association of Management of Nursery, Primary & Matriculation Schools v. Govt. of Tamil Nadu, AIR 2007 Mad 92).

17
Feb

When does the differentiation become unreasonable under Article 14 ?

Though Article 14 prohibits discrimination but it does not prohibit discrimination based on reasonable classification. What is prohibited is unreasonable or arbitrary differentiation which is known as discrimination.

The word discrimination as we see is not easy to define, but this much is clear that it involves some favour, preference or advantage and some prejudice or disadvantage as between two comparable persons. However, some differentiation is permitted ‘to establish an equilibrium between different situations’. The dividing line between the reasonable classification and discrimination was brought up in European Convention that the equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establish an equilibrium between the situation.[1]

The test to check at what limit the discrimination becomes unreasonable and thus liable to be set aside was promulgated in Shamrao’s [2]that the Court must be satisfied on two points before it can strike at a law on the ground of unlawful discrimination. It must be satisfied (1) that the law in fact discriminates, and (2) that such discrimination is not permissible on the principles of a rational classification made for the purpose of the legislation. Both the points must be urged in the petition, with necessary averments.[3]

Read: How the policy behind statute is determined?

The discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds[4] mentioned in Article 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provision of those Articles. But the position under Article 14 is different. Equal protection claimed under that Article are examined under presumption that the state action is reasonable and justified. This presumption of constitutionality stem from the wide power of classification which the Legislature  must, of necessity, posses in making laws operating differently in regards different group of persons in order to give effect to its policies. The power of the state to regulate the criminal trials by constituting different court with different procedure according to the needs of different parts of its territory is an essential part of the police power. Though the differing procedure might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands as for instance, when it amounts to a denial of a fair and impartial trial.[5]

It shall be noted that the law cannot be struck down as discriminatory merely because it results in inequality between persons or object.[6] Every classification, in fact, involves discrimination. The law will be invalidated, under Article 14, only if there is no reasonable basis for such differentiation, having regard to the object of the Legislation.

[1] Minority School in Albania, (1935) P.C.I.J. A/B 64 p.19

[2] Shamrao v. D.M. 1952 SCR 683 (691); V.S. Rice and Oil; Mills v. State of A.P. 1964 SC 1781: (1964) 7 SCR 456

[3] Katra Education Society v. State of U.P. AIR 1966 SC 1307 (para 14) : (1966) 3 SCR 328

[4] Art 21 of Universal Declaration of Human Rights

[5] Kathi Raning v. State of Saurashtra, 1952 SCR 435 (442-3) : AIR 1952 SC 123

[6] Ganga Ram v. Union of India, AIR 1970 SC 2178 : (1970) 1 SCC 377; Jalan Trading Co. V. Mill Mazdoor Sabha AIR 1967 SC 691: (1967) 1 SCR 15

10
Feb

Whether judicial order can violate Article 21 of the Constitution

The question similar to this, whether a fundamental right can be violates by a judicial decision or order came up before a 7-judge Bench in Antulay’s case[1] where majority laid following guidelines;

  • A court cannot confer a jurisdiction on itself which was not provided by the Constitutional or Statutory law.[2] [para 38 & 48]
  • A judicial order made without jurisdiction is nullity. [para 81]
  • The jurisdiction of the court can be created, (enlarged or diverted) only by the Legislature and not by the court itself. [para 41]
  • No court can divest a person of his right of appeal or revision established by law. [para 41]
  • Where a Court assumes jurisdiction which it does not possess or divests a person of his constitutional or statutory right (even though in exercise of its power of interpretation), it acts contrary to the ‘procedure’ established by law’, and there is a violation of article 21. [para 43]
  • A decision which violates the basic principles of natural justice g, an order passed behind the back of a party, it contrary to the procedure established by law, and therefore, violative of Article 21 of the constitution. [paras 61, 62, and 80]
  • A judicial order which violates a fundamental right or the principles of natural justice, is a nullity [para 57], and, where there is no superior court to set it aside, it should be rectified by the court which passed that order, in the exercise of its inherent jurisdiction. [para 81-83]
  • Where a person’s reputation is likely to be affected by a judicial order, he must be heard before any order is passed. Right to reputation is part of article 21. Hence, the person is entitled to have an opportunity of being heard which is also part of life. If the principle of natural justice is violated, the remarks against the person in liable to be expunged.[3]

Thus, it is settled law that the court cannot go beyond Article 21 of the constitution in pronouncing decision. Article 21 which is most important principle controls despotic power of whatever institution it may be. The application of article 21 cannot be restricted to some particular cases or circumstances. Hence, it is applicable to all.

[1] Hussainara v. Home Secy. (I) AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; Antulay v. Nayak, AIR 1988 SC 1531 : 1988 (Supp-1) SCR 1 : 1988 2 SCC 602; Kadra v. State of Bihar, AIR 1981 SC 939 (para 2) : 1981 # SCC 671

[2] Antulay v. Nayak, AIR 1988 SC 1531 : 1988 (Supp-1) SCR 1 : (1988) 2 sc 602 (PARAS 38, 40, 41, 43, 57, 61, 62, 80-83, 144) PER mukharji, oza, natrajan, ray, jj; Maruti Ltd. Chandigarh v. PAN India Plastic Pvt. Ltd., New Delhi, AIR 1993 P & H 215; Dilip Dahanukar v. Kotak Mahindra Co. Ltd. (2007) 6 SCC 528

[3] State of Maharastra v. Public Concern of Governance Trust, AIR 2007 SC 777 : (2007) 3 SCC 587; Reliance Energy Ltd. V.; Maharstra State Road Transport corpn. Ltd. (2007) 8 SCC 1

8
Feb

Evidentiary Value of Narco-Analysis Test

Narco-Analysis in most of the cases are self-incriminating in nature. It is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they are often exploited by therapist. The privilege against self-incriminating is a fundamental canon of common-law criminal jurisprudence. The characteristic features of this principle are-

  • That the accused is presumed to be innocent,
  • That it is for the prosecution to establish his guilt, and
  • That the accused need not to make any statement against will.

With the advancement of technology, methods of investigation are now available to the police and other investigation authorities which have and continued to raise interesting issues on the constitutionality of the process employed. The Bombay High Court considered the question, whether the compulsory subjection of accused to three or these new methods namely Lie Detector or polygraphy tests, P-300 Test or Brain Mapping Test and Narco Analysis or truth Serum Test violate the constitutional prohibition of testimonial compulsion under Article 20 (3). According to the court none of the test violates Article 20 (3) of the Constitution because the tests of Brain Mapping and Lie Detector in which the map of the brain is the result, or polygraph, cannot be said to be a statement made by the witness. At the most it can be called the information received or taken out from the witness. With regard to narco analysis while holding that the result of administration of serum in necessarily a statement nevertheless “unless it is shown to be incriminating to the person making it, it does not give rise to the protection under Article 20 (3)[1].

Statement made in result of Polygraphy Test, P-300 Test or Brain Mapping Test, and Narco Analysis or Truth Serum Test during the course of investigation of a crime by the accused, or witness to the police, and if the accused point out the place where the corpur delicti has been kept or reveals the possession of such things, and in pursuance of such information discovery was made which incriminate the accused, or the witness, neither such statement or such discovery comes within the prohibition of Article 20 (3)[2]. Section 27 of the Evidence Act has been held to fall outside the prohibition of Article 20 (3)[3] unless compulsion has been used in obtaining the information. If the self-incrimination has been given by an accused person without any threat, that will be admissible in evidence and will not be hit by Article 20 (3)[4]

[1] Ram Chandra Reddt v. The State of Maharastra, 2004 All MR (Cri) 1704 : 2004 Bom CR (Cri) 657

[2] Subbaya Gounder v. Bhoopala, AIR 1959 Mad 396

[3] State of Bombay v.. Kathi Kalu Oghad, AIR 1961 SC 1808 : (1962) 3 SCR 10

[4] State of Uttar Pradesh v. Deoman Upadhaya, AIR 1960 SC 1125 : (1961) 1 SCR 14; Md Dastagir v. State of Madras, AIR 1960 SC 756 : P (1960) 3 SCR 116

27
Jan

Increase in Reservation of Physically Handicapped Candidates in Civil Services Exams

The question came before Supreme Court in Union of India & ors v M. Selvakumar & Anr on 24 January 2017, whether Physically Handicapped Candidates belonging to Other Backward Caste (OBC category) are entitled to avail 3 more attempts, adding it up to a total of 10, in Civil Services Examination on the reason that the attempts for Physically Handicapped Candidates belonging to General Category have been increased from 4 to 7.

The Central Government under All India Services Act, 1951 amended Civil Services Examination Rules under clause 3 (iv) of notification dated 29.12.2007 adding that the Physically Handicapped candidate belonging to General Category are eligible for 7 attempts. The notification dated 29.12.2007 was challenged before the Supreme Court on the ground of violation of Article 14 and in violation of basic frame work of the PWD Act, 1995 on the ground that equating the number of attempts for disabled persons from open category with the number of attempts for disabled persons in the OBC category, the Government is treating the unequals equally which is forbidden under Article 14 and 16 (1).

Legal Analysis

Article 16 of the Constitution of India provides for equality of opportunity in the matter of public employment. It provides two types of reservation, namely, Vertical or social reservation as provided in Art 16 (4) and Horizontal reservation under Article 16 (1). The instances of Horizontal reservation are Article 16 (1) and 15 (3). The nine Judge Bench in Indra Sawhney and ors v. Union of India and ors 1992 Suppl, (3) SCC 217 held that Horizontal reservation can cut across vertical reservation. The following points were stated as under;

            “There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes under Article 16 (4) may be called vertical reservations whereas reservations in favour of Physically Handicapped under Article 16 (4) can be referred to as Horizontal reservations. Horizontal reservations cut across the vertical reservations – what is called Interlocking Reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Article 16 (1). The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to Open Competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains – and should remain – the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”

The question is issue is Horizontal Reservation which is provided for the candidates belonging to the category of Physically Handicapped category as to whether in grant of relaxation with regard to number of attempts to appear in the Civil Services Examination in context of Physically Handicapped candidates of General Category to 7 and not further increasing the number of attempts for OBC Physically Handicapped candidates from 7, there is a discrimination or violation of Art 14 of the Constitution, and whether there is actually any discrimination in the number of attempts made available to Physically Handicapped Candidates, belonging to General Category and those of the OBC category. The Court held that equality contemplated by Article 14 is not only when equals are treated equally but also when unequals are treated unequally. Further relying on the observation made in Indra Sawhney;

            “It is no longer necessary to emphasise that equality contemplated by Article 14 and other cognate articles including Articles 15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured not only when equals are treated equally but also when unequals are treated unequally. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals and therefore, it is necessary to adopt positive measures to abolish inequality. The equalizing measures will have to use the same tools by which inequality was introduced and perpetuated. Otherwise the equalization will not be of the unequals. Article 14 which guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalizing measures. The Founders of the Constitution, however, thought it advisable to incorporate another provision under Art 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasized in (4) thereof that for equalizing the employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in such services. By hindsight, the foresight shown in making the provision specifically, instead of leaving it only to the equality provision as under the U. S. Constitution, is more than vindicated.”

The Court thus relying on above mentioned arguments held that in the case of the OBC candidates, the number off attempts permitted to both physically fit candidates and those with disability is 7. The proposed equation under such circumstances was held to be discriminatory by M. Selvakumar which directed an increase by 3 attempts and thus the judgment of Delhi High Court was held to be erroneous, and thus the Court concluded that increasing the number of attempts for Physically Handicapped candidates belonging to General Category  from 4 to 7 and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC category from 7 to 10 is discriminatory in nature, and thus unsustainable.

21
Jan

How the policy behind statute is determined?

Even when Legislature does not make effective classification and leaves it to be made by administrative authority the legislature in such a situation law down the policy or the standard according to which the delegate must make the classification.

In P.N. kaushal v Union of India 1978 the Supreme Court has established that the policy of the law must be gathered from the Preamble and shall be read in the light of circumstances in which it is passed. The discretionary power of administrative authority shall be limited within the condition of its exercise laid down in the rules made under the Act.

In State of West Bengal v Anwar Ali Sarkar 1952 the Supreme Court has established that where the standard or guide furnished by the statute is vague and uncertain  it amount to the absence of any guide at all and the law must be struck down as conferring unguided power upon the Executive to discriminate but where the standard offered by the statute is vague or not is to be determined upon an examination of the act read as a whole, the standard prescribed by the Act cannot be held to be vague so as to be gathered from the history of the legislation and the circumstances which prevailed at the time of its enactment, and to ascertain these facts, the court may take affidavit on the behalf of the state.

The above argument leads us to another question, whether denial of equal protection may take place in the administration of law?

In Kedarnath bajoria v State of West Bengal AIR 1954 it was mentioned that the equal protection may be denied not only by legislation but also by administration of law. The principles to be applied where an administrative act is challenged should not be confused with those which are to be applied when the law itself under which the administrative act is purported to be done is challenged.

Where the law itself is not discriminatory and the charges of violation of equal portion is only against the official who is entrusted with the duty of carrying it into operation, the charges will fail if the power has been exercised by the officer in good faith within the limitation imposed by the Act and for the achievement of object of enactment had in view, if, however, the person who alleges discrimination succeeds in establishing that the step was taken intentionally for the purpose of injuring him, or in other words, that it was a hostile act directed against him, the executive act complained of must be annulled, even though the statute itself be not discriminatory.

Thus, it was established in Iron 7 metal traders v Haskiel that when a law is challenged as discriminatory, relevant consideration is the effect of the law and the intention of the Legislature but when a law is itself non-discriminatory but its administration is challenged as discriminatory, the question of intention of the administrative authority becomes material. The administrative action cannot be said to have offended against Article 14 unless it was ‘mala fide’ or actuated by a hostile intention as distinguished from mere oversight. Mala fide intention can be established where there is discrimination if individual is signed out from a number of persons similarly situated for a hostile treatment.

21
Jan

Check reasonableness: Fundamental Right on Subjective Satisfaction of the Executive

In Baranasi Das Modi v State of Pepsu 1957 the Supreme Court in determining the reasonableness of the restriction imposed by a law on the test which has been applied by Courts is whether the restriction imposed by the authority that is empowered by the Legislature, subjectively or objectively, is respect to subjective satisfaction of the executive. However, the ‘subjective’ decision of a person cannot be tested in the court of law but an ‘objective decision’ which is arrived at by the application of some external standard which is made according to objective standard of the authority can be tested in court, for instance, whether a particular conclusion follows from the evidence placed before the authority.

The answer to the question, whether a restriction would be invariable be unreasonable of the authority is empowered to impose on its subjective satisfaction, cannot be absolutely construed, however, the reasonableness depends on the nature of the right and the circumstances calling for the restriction. It was held in A.K. Gopalan v. State of Madras 1950 that a law providing externment or internment for the security of the state is not an ‘unreasonable’ restriction of the freedom of movement guaranteed by Art 19(1)(d) merely because it leaves the necessity of making the order of externment in any case to the subjective satisfaction of a particular officer. The Supreme Court viewed the necessity of externment in the same light as a law of preventive detention. Whatsoever, if the statute does not provide adequate safeguard the law must be struck down.

In any such case, or whatsoever, the Supreme Court held in N.B. Khare v State of Delhi 1950 that mere possibility of abuse of the power of the executive is no test for determining the reasonableness of the restriction imposed by the law.

The Supreme Court in Harishankar Bagla v State of Madhya Pradesh AIR 1954 held that there is presumption that a public authority will act honestly and reasonably in the exercise of its statutory power. If however, the statutory power or discretion is shown to have been abused by the authority by exercising it contrary to the policy laid down by the law, the person aggrieved shall have his remedy against the illegal order but that would be no ground for invalidating the statute itself.

On the other hand, however, the Supreme Court for the protection against the dependency upon the subjective satisfaction of government, has held in Harichandra Sarda v Mizo Dist. Council AIR 1967 that in the absence of emergent or extraordinary circumstances the exercise of a basic right like the right of association or to reside in any part of India or to carry on a lawful business could not be reasonable made dependent upon the subjective satisfaction of the government or any of its officers, without offering any standard for guidance.

Further, the Supreme Court inn State of Madrass v. V.G. Row 1952 constructed the formula of subjective satisfaction of the government and its officers with an advisory Board to review the material on which the government seeks to override a basic freedom guaranteed to the citizen, amy be viewed as reasonable only in very exceptional circumstances where in a law the internment and externment for the security of state are provided, and shall be within the narrowest limits, and not to curtail a right like the freedom of association, in the absence of any emergent or extraordinary circumstances.

18
Jan

Is Hindutva a secular policy?

Secularism owes its birth to the state sponsored programs against those denominations which were not acceptable to the state. After prolonged bloodshed France invented secularism. It aimed at keeping the state and Church apart and so is the concept of secularism in other states.

In S.R. Bommai v. Union of India 1994, a nine judge bench of Supreme Court referred to the concept of secularism in the Indian context. According to Justice Sawant;

“ religious tolerance and equal treatment of all religious group and protection of their life and property and of the place of their worship are an essential part of secularism enshrined in our constitution……”

Justice B.P. Jeevan Reddy observed;

“ while the citizen of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the state is concerned, i.e, from the point of view of the state, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally.”

The concept of religion is not merely a positive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions.

The concept of secularism was not expressly incorporated in the Constitution at the stage of its making. It was included in 1976 through the 42nd Constitutional amendment.

Though there is no precise definition of word ‘secularism’ but judiciary has made an excellent attempt in defining the term. A secular state does not extend patronage to any particular religion. The state is neither pro any religion nor anti any particular religion. The state in India maintain neutrality in the matter of religion and provides equal protection to all religion subject to regulation of secular parts. Justice Verma delivering the majority opinion in M. Ismail Faruqui v. Union of India AIR 1995 (Ayodhya Case) observed that;

“it is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The preamble of the Constitution read in particular with Articles 25 to 28 emphasizes this aspect and indicates that it is in this manner the concept of secularism embodied in the constitutional scheme as a creed adopted by the India people has to be understood while examining the constitutional validity of any legislation on the touchstone of the constitution. The concept of secularism is one facet of the right to equality woven ass the central golden thread in the fabric depicting the pattern of the scheme in our constitution.”

The Constitution Bench in Sastri Yagnapurushadji and others vs. Muldas bhudardar Vaishya and another, 1966 (3) SCR 242 held thus :

“The historical and etymological genesis of word ‘hindu’ is derieved from ther river ‘Sindhu’ also known as Indus which flows from Punjab. Monier Wlliams says that Hindus are the part of the great Aryan race who immigrated from Central Asia through the mountain passes into India, settled first in the districts near the river Sindhu. The Persians pronounced the word Hindu instead of Sindhu and named their Aryan brethren Hindus. The Greeks who probably gainedthier first ideas of India from Persians dropped the hard aspirate and called the Hindus “Indoi” (Hinduism, thereon developed).

The Encyclopedia of Religion and Ethics, Vol. VI has described “Hinduism” as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire.”

Monier has emphasized that it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism.

The great Indian historian and philosopher Dr. Radhakrishnan has further observed that the Hindu civilization is so called since its original founders or the earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Provience and the Punjab. This is recorded in Rig Veda the oldest of all the Vedas. The people on the Indian side of the Sindhu we are called Hindu by Persian and later western invaders in “The Hindu View of Life”. This was where the word “hindu” was evolved. Unlike other religion the followers of Hindu does not worship any particular God or follow particular philosophy. They are united by the bound untraceable and unknown. In fact the Hindus does not appear to satisfy the narrow traditional features of any religion or creed and therefore it may broadly be described as a way of life and nothing more.

The seven judge bench of Supreme Court overlooked Teesta Setalvad, theater activist, and author Shamsul Islam and Senior journalist plea to undo the “devastating consequences’ of its 1996 judgment in Manohar Joshi vs Nitin Bhaurao Patil and re-established that Hindutva is not a religion but a way of life.