Tag: constitution

10
Nov

TODAY’S PROMISE, TOMORROW’S CONSTITUTION: ARTICLE 368- BASIC STRUCTURE, CONSTITUTIONAL TRANSFORMATION AND POLITICAL PROGRESS IN INDIA

INTRODUCTION- A FRAME WORK FOR DEBATING BASIC STRUCTURE

It is tricky to fangled about the old themes, especially so when such ideas still continue as the staple feed of contemporary world. Legal system is a hierarchal normative order.[1] Each norm in such an order derives authority from a higher norm.[2] It is important that the legal system must have uniformity, unity and coherence. In legal system the Constitution[3] written or unwritten is of the highest importance, since it contains the norm of high authority. It is the basis from which individual norm develop. The constitution draws its nature, character and content from the basic norm of the legal system, as it lives closest to the basic norm. It is far less tricky to be persuaded about the usefulness of debating such popular themes in the manner of their importance. “Basic Structure” is one such recurring theme in the dynamics of Indian Constitution. The doctrine speaks on behalf of constitutionalism essentialism and suggests that constitutional amendment cannot embrace repeal of such essentials which define the constitutional identity. Any such developments, under the doctrine are seen as a fundamental breach of the Constitution’s basic structure and are struck down as unconstitutional. Time and again, the Supreme Court of India has deliberated upon the stability of these amendments on the self styled benchmarks of structural essentialism and much of the debate on the doctrine is all about the limits of the craft. Vigorously debated since its inception in Keshvananda Bharati[4], the doctrine continues to be a central feature of recent institutional development over constitutional identity and change. The story of how the “Basic Structure “has reshaped post emergency constitutional thought in India has been often told and conclusion are drawn about the institutional harvests in the process. Elapse of time and changes in the social, economic and political sphere causes change in the legal system. Though legal system has to adjust to the needs of the society, at times such changes may go the extent of destroying the identity of the legal system. It is not desirable that the essential feature of the legal system is swept away by such changes. Hence the major problem which legal system face is one of the balancing itself between the demands of continuity and stability on the one hand and change and flexibility on the other hand.[5] Though fundamental to legal system, Constitution is also the subject to changes. In the case of unwritten Constitution such changes occur involuntary, while in written Constitution are subject to changes through deliberations known as amendment. Admendability of the Constitution is “Sine qua non” for the absence of the possibility to make changes through extra constitutional methods including revolutions.[6] Moreover non Admendability of the fundamental rights implies monopoly of a generation over the future which is an unacceptable proposition.[7]

BASIC STRUCTURE GENESIS

A Constitutional bench of the Supreme Court, consisting of thirteen judges held in Kesavananda Bharati v. State of Kerala[8] popularly called as the fundamental Right case, that the power to amend the constitution emanates from Article 368 of the Constitution. It means that unlike the power to make the constitution, the power to amend it, is derivative in nature. The court further held that the expression “to amend” was one of the wide imports and included the power to repeal or abrogate the law; the expression in Article 368 was used in the narrow and constricted sense. Though not explicitly restricted over and above that, there are certain features of the Constitution which cannot be altered in exercise of amending power. The judges named them as basic structure, basic elements, and fundamental features, or the essential feature or the basic principle of the constitution.

 

BASIC STRUCTURE; INGRENDIENTS

Though the court held that the power of Parliament to amend the Constitution was impliedly limited by the doctrine of basic structure but it did not clearly define or explain what constituted the basic structure. Chief justice Sikri suggested that supremacy of the Constitution, republican and democratic form of Government, secular characteristic of the Constitution, separation of powers and federal character of the Constitution were its ingredients[9]. He opined that the structure was built upon the dignity and freedom of the individuals. Justice Shelat and Justice Grover were of the view that in addition to the above mentioned principles, the mandate to build a welfare state contained in Part IV of the Indian Constitution also formed the part of basic structure.[10] Justice Khanna identified the democratic and parliamentary form of government and secularism as constituting the basic structure of the Indian Constitution.[11] Justice Jagmohan Reddy catalogued Sovereign Democratic Republic; Justice, Social, Economic, Political; Liberty of thought, expression, belief, faith and worship and equality of status and opportunities as to the contents of “Basic Structure”.[12]

CONCLUSION

Therefore debating over the concept whether “Article 368 is Boon or Bane” is deeply connected with the treasure hunt and is largely reliant on our ability to recognize and link up the various clues keeping within the limits of political and legal framework.

Prominent among ideas, the philosophical strength of the “Basic Structure” doctrine is of higher nature of constituent politics and thereby the higher pedigree of constituent power, over and above limits cast by the constitution. In short the doctrine of the basic structure has gained an incontrovertible status in the Indian Constitution. It is true that the judiciary has invented the doctrine of basic structure to tide over the scuffle between the ‘judiciary and legislature’ in an era of parliamentary supremacy. However with the change over time when the legislative supremacy is lost, instead of throwing the doctrine to desuetude, the judiciary has dovetailed the doctrine to the modern requirements of the present legal system.  It is unlikely that in the future the doctrine would be abrogated rolling back the constitutional position to the pre Kesavananda days. Nor it is desirable also. Was not the statement[13] that “Kesavananda” is the constitution itself – a Prophecy?

By Pranav Kumar Kaushal, Student B.A.LLB 6th Semester School of Law, Bahra University

[1] Hans Kelsen, General Theory of Law and State, Harvard University Press, Cambridge, (1945), p.110.

[2] Norm’ is the meaning of an act by which a certain behaviour is commanded permitted, or authorised.” Kelsen, Pure Theory of Law, University of California, Berkeley (1970), p.5.

[3] Constitution may be defined as the “organic and fundamental law of a nation or state, which may be written or unwritten establishing the character and conception of its government laying down the basic principles to which its internal life is to be conformed…” See Black’s Law Dictionary (1990).

[4] Kesavananda Bharati v. State of Kerala and Another, AIR 1973 SC 1461. Basically, the idea that a few features of the constitutional structure are so fundamental that the Constitution cannot survive without them and together they constitute an inviolable core called the Basic Structure of the Indian Constitution.

[5] Paras Diwan and Piyush Diwan, Amending Power and the Constitutional Amendments, Deep and Deep, New Delhi (1997), p. 10

[6] H.R. Khanna, “Power to Amend the Constitution”, (1983) 2 S.C.C. (Jour.) 1.At the time of framing our Constitution M.V. Thyagi observed that in the absence of an amendment procedure the Constitution would be a brittle one. IX C.A.D. 1657.

[7] An unamendable constitution therefore is characterised as the worst tyranny of time or rather the very tyranny of time’. Per Subba Rao, C.J., in Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643 at p. 1662.

[8] (1973) 4 S.C.C. 225: A.I.R. 1973 S.C. 1461. The petitioner approached the Supreme Court under Article 32 for enforcement of his fundamental rights under Articles 25,26,14,19(1)(f) and 31 of the Constitution. He challenged the validity of the Kerala Land Reforms Act, 1963 as amended by the Kerala Land Reforms (Amendment) Act 1969. During the pendency of the petition the Constitution (Twenty fourth Amendment) Act 1971, the Constitution (Twenty fifth Amendment )Act 1972 and the Constitution (Twenty ninth Amendment) Act 1972 came into force, As a result of the 29′ amendment act the Kerala Land Reforms Act as amended was inserted in Schedule IX to the Constitution. Incorporation of statutes in Schedule IX immunizes them from being challenged as unconstitutional. The petitioner therefore challenged also the validity of those amendments to the Constitution.

[9] Sankari Prasad v. Union of India, A.I.R 1951 S.C. 458; Sajjan Singh v. State of Punjab, A.I.R 1965 S.C. 745 and Golaknath v. State of Punjab, A.I.R 1967 S.C. 1463.

[10] Madhav Rao Scindia v. Union of India (1971) 3 S.C.R. 9

[11] Bijay Cotton Mills v. State of Ajmir, A.I.R. 1955 S.C. 33 and Mumbai Kamgar Sabha v. Abdulbahi, A.I.R. 1976 S.C. 1455

[12] I.P. Massey, “Theory of Basic Features-A Dogma or Doctrine”, 7 J.B.C.I. 38. 43(1977). Also Ramesh D.Garg, “Phantom of Basic Structure of the Constitution : A Critical Appraisal of the Kesavananda Case”, 16 J.I.L.I. 243 (1974).

[13] Upendra Baxi, Courage, Craft and Contention—The Supreme Court in the 80’s, N.M.Tripathi, Bombay (1985), p. 66.

17
Jun

PCS (J) Notes: The State Judiciary (Art. 214 – Art. 237)

The State Judiciary (Art. 214 – Art. 237)

 

The Judiciary in State consist of a High Court and a system of courts subordinate to the High Court. Article 214 provides that there shall be a High Court in each State. However under Article 231 (1) Parliament can establish by law a common High Court for two or more States or for two or more States or a Union Territory.

 

Constitution of High Court

Every High Court shall consist of a Chief Justice and such other judges as the President may, from time to time, deem necessary to appoint (Art. 216). Thus, the Constitution does not fix any maximum number of judges of a High Court.

 

Appointment of the Judges

Positon prior to 99th amendment of the Constitution:

Article 217 provided that every judge of a High Court would be appointed by the President. The President would appoint the Chief Justice of a High Court after consultation with the Chief Justice of India and the Governor of the State concerned. In case of appointment of Judge other than Chief Justice, he would even consult the Chief Justice of the High Court.

In Supreme Court Advocates-on-record Association  vs. Union of India[1], A nine judge bench of the Supreme Court by a 7:2 majority over ruled the ‘Judges Transfer Case’ and held that in matter of appointment and transfer of Judges, greatest significance must be attached to the view of the Chief Justice of India.

 

Position after 99th amendment of the Constitution:

After the Constitution (Ninety-ninth amendment) Act, 2014, every judge of the High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission (NJAC) referred to in Article 124-A.

 

 

Qualifications

According to Article 217 (2) person to be qualified for appointment of High Court Judge:

  1. Must be a citizen of India
  2. Must have held a judicial office for at least 10 years, in the territory of India,
  3. Must have been an advocate of a High Court or two or more such courts in succession for at least 10 years.

 

Oath, Salary and Allowances

A High Court Judge must, before he enters upon his office, make and subscribe before the Governor of the State, and oath or affirmation in the prescribed form. (Art. 219)

The Judges of High Court are entitled to such salaries as are specified in the Second Schedule. They are also entitled to such allowances in respect of leave and pension as determined by the Parliament by law from time to time. (Art. 221)

 

Term and Removal of Judges

A judge of the High Court shall hold office until he attains the age of 62 years. If a question arises as to the age of the judge of the High Court, then it shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final in this regard. [Art. 217 (3)]

A judge may however be removed from the office by the President in the manner provided in clause (4) of Article 124 for the removal of the judge of the Supreme Court, namely by an order of the President passed by an address by each House of the Parliament supported by a majority of the total membership of that House and by a majority of not less than one-thirds of the member of that House present and voting and has been presented to the President for such removal on the ground of proved misbehaviour or  incapacity.

In C. Ravi Chandran Iyer vs. Justice A.M. Bhattacharjee[2], the Supreme Court held that only the Chief Justice of India can be prime mover for taking any action against an erring judge. An in-house procedure by judiciary can be adopted by the Chief Justice of India and no other procedure like pressure can be adopted.

The office of a judge also falls vacant by his appointment by the President to be the Judge of the Supreme Court or being transferred to any other High Court. A judge may also resign from his office by writing to the President (Art. 220)

 

Transfer of Judges

Article 222 empowers the President to transfer a judge from one High Court to another. However, this must be done in consultation with the Chief Justice of India, and the Judge so transferred is entitled to an additional compensatory allowance.

In S.P. Gupta vs. Union of India[3],where the transfer of Chief Justice of Patna High Court to the Madras High Court was challenged. The Court by a majority held in this case that the consent of the concerned Judge is not a pre-condition to a transfer.

 

Restriction after Retirement

Article 220 prohibits a person who has held office as a permanent judge of High Court from acting or pleading in any court or before any authority in India except the Supreme Court and other High Court. This prohibition is necessary in order to maintain the independence of the judiciary.

 

Powers of the High Court

  1. Power to issue certain Writs (Art. 226)

Article 226 empowers the High Court to issue any person or authority, including the Government (in appropriate cases), directions, order or writs in nature of Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-warranto or any of them-

  1. For any of the rights conferred by Part III of the Constitution
  2. For any other purpose.

 

  1. Power of Superintendence (Art. 227)

Article 227 retains the power of superintendence over all Courts and Tribunals except those dealing with the armed forces functioning in the State with the High Court. This power has made the High Court responsible for the entire administration of Justice in the State. It is both judicial as well as administrative in nature. The Constitution does not place any restriction on its power of superintendence over the subordinate Courts. It may be noted the Supreme Court has no similar power vis-a-vis the High Court.

 

  1. Power to withdraw cases to itself (Art. 228)

If subordinate that a case pending in court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, the High Court has power to withdraw cases.

 

  1. Appointment of officers and servants and the expenses of the High Court (Art. 229)

Appointment of officers and servants of a High Court are made by the Chief Justice of the Court. The administrative expenses of the High Court are to be charged upon the consolidated funds of the State.

 

  1. Control over subordinate courts (Art. 235)

Every High Court has control over district court and courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State.

 

 

References

 

  • Pandey J.N., CONSTITUTIONAL LAW OF INDIA, Central Law Agency, 53rd Edn, 2016.
  • (1993) 4 SCC 441
  • (1995) 5 SCC 457
  • 1981 Supp. SCC 87

[1] (1993) 4 SCC 441

[2] (1995) 5 SCC 457

[3] 1981 Supp. SCC 87

22
Feb

CONSTITUTIONAL CONVENTION IN INDIA: WITH SPECIAL EMPHASIS ON COLLEGIUM SYSTEM

Written By: Vishad Srivastava

Constitutional convention, two words which utmost decide the fate of any country but if I decode these words all this turn out to be just a common word but where the difference lies is in their applicability. The word convention means an agreement between the parties or a pact or a mutual engagement between two persons, possessing all subjective requisites of contract but which did not give rise to an action nor receive the sanction of law as bearing an “obligation” until the objective requisite the solemn ceremonial was supplied[1]. In other words, convention was an informal agreement of the parties which forms the basis of the contract and which became a contract when external formalities were superimposed. A constitution is written a book of the rule according to which our nation works but constitutional convention are that agreement which is not described in our Constitution but it is left fare open to the politician or the organ of government to form the convention according to the need and time scenario. Two sets of principles make up the constitutional law. One set of rules is contained in the written constitution of a country and another set is referred to as the “conventions of the constitution”. The convention is a means of bringing about constitutional development without formal changes in the law. The conventions grow up, around and upon principles of the written constitution. Necessary conventional rules spring up to regulate the working of the various parts of the constitution, their relation to one another and their subject. The convention enables a rigid legal framework to be kept up with changing social needs and changing political ideas. The convention enables the men who govern to work the machines. The written constitution cannot provide every eventuality.Constitutional institution is always created by the provision which is generally worded. Such provision is interpreted by the help conventions which grow with the passage of time. Conventions are vital so far as they fill up the gaps in the constitution itself, help solve the problem of interpretation and allow for the future development of the constitutional framework. Whatever be the nature of the constitution a great deal may be left unsaid in the legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion. A power which judicially is conferred upon a person or body of a person may be transferred, guided or canalized by the operation of the conventional rule. The primary role of the convention is to regulate the exercise of discretion which is presumably to guard against the irresponsible abuse of power. Every act by a constitutional authority is a precedent in the sense of example which may or may not be followed in subsequent similar cases but a long series of precedent all pointing in the same direction is very good evidence of convention. The requirement for establishing the existence of convention have been succinctly laid down by Sir W. Ivor Jennings in The Law and the Constitution as follows: “ We have to ask ourselves three question’ first what are the precedent, secondly did the actors in the precedent believe that they were bound by rules, and thirdly is there a reason for the rule” A single precedent with good reason will be enough to establish a rule. A whole string of precedent will be of no use unless persons associated with that precedent are bound by that precedent. A convention, while it is a convention, should be distinguished by the law but this did not mean that what was formerly a convention cannot later become a law. When customary rules are recognized and enforced by the court as law there is no reason why a convention cannot be crystallised as law and become enforceable as a law. It is no doubt that convention needs to be brought by the factual evidence and its history must be brought into the picture but since when any customary rule is practiced for a long time then slowly it becomes precedent and thereafter a convention or in better terms a law in itself. The constitution of India has borrowed the British form of government, making the cabinet collectively responsible for the act of the house of the people. The machinery of government is essentially based on the British form of government and whole British convention has either been inducted in the constitution or has been adopted as unwritten law. During constitutional assembly debates, it was discussed to have a convention whether in written or unwritten form and later on it was decided to be it in unwritten form so that laws are compatible to the relative political and social scenario[2].

Some characteristics of the constitutional convention which can be drawn that:

  1. Constitutional convention is nonlegal rights, powers and confer obligation on the authorities of different organ
  2. Applicability of convention in many instances it is clear but in few scenario, it becomes doubtable where it becomes debatable the authenticity of the convention
  3. They somewhat resemble to rule of law and minutely differs from Dicey’s concept in their test of applicability and intelligible differentia

Now talking for constitutional convention in India there are bunch of conventions which are remarkable as well as debatable and first in the list in Article 75(1) which stated that The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister but here in India the Prime Minister is the Leader of largest Party and this is nowhere mention in  our constitution or in any statue but it has become customary practice.Although this customary practice was successful till there was a government with a full majority and when there was the resignation of any Prime Minister no such convention was there. In the history we see convention emerges from the situation when India politics faces a new type of government formation after the sack of Janta Party so President Reddy sought to invite Charan Singh for Prime Minister as according to him he was the compatible leader according to the scenario so that was the first time when convention played its unsung role[3]. The Constitution does not require that a person must prove or establish his majority in Lok Sabha before he is invited to be the Prime Minister[4]. The President may first invite him and appoint him the President and the ask him to prove his majority or seek of the vote in confidence in Lok Sabha within a reasonable period[5]. A Sarkaria Commission report was made for the convention of work of the governor and President and center state relationship. This 1600 page committee report where it tries to start a new convention for the governor (mainly) but many of its recommendation was not accepted and it all came down but till now whether to appoint Prime Minister or Chief Minister conventions are playing their role effectively.

Now moving on further towards the main aspect of the constitutional convention that is the appointment of judges and collegium system in the Indian judiciary both have been utmost debatable topics where many a times convention was called into the question.

Supreme Court Judges Appointment and Collegium System

Article 124 which stated that Establishment and constitution of Supreme Court

1 There shall be a Supreme Court of India constituting a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges

2 Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

In clause (1) provides for the establishment of a supreme court of  India.  The court consist of a Chief Justice and until Parliament by law prescribes large number. Under this power, Parliament has increased their judge’s seat. The Court has held that the number of Judges should be commensurate with the amount of work. Otherwise, the judiciary cannot perform its work and will not be able to provide its constitutional obligation[6]. Clause (2) lays down the method of appointment of judges of the Supreme Court. Every judge of the supreme court is appointed by the president by warrant under his hand and seal. The President’s power of appointment of judges is not unfettered. The constitution expressly requires him to consult such of the judges of the Supreme Court and of High Court as he may deem necessary. It also requires him to consult such of the judges of the supreme court and of the high courts as he may deem necessary. It also requires him to always consult the Chief Justice of India in the appointment of a judge other than the chief justice of India. According to court interpretation which eventually becomes a precedent and then convention, has given the provisions regarding the process of appointment of the judges is initiated by the Chief Justice through a collegium consisting of himself and four of the senior-most judges of the court. The recommendation of the collegium is binding on the President. He may, however, not appoint a person whom for the specific reason he does not consider suitable for appointment. In such case, the collegium is binding on the President.  He may, however, not appoint a person whom for specific reasons he does not consider suitable for appointment. In such case, the Collegium must reconsider its recommendation. On reconsideration, it may either drop the name of the person not found suitable by the President or reiterate its recommendation. In the latter case, the President is bound to accept the recommendation[7]. The court has overruled its earlier interpretation which gave primacy to the President in the appointment of judges[8]. The Constitution gives no indication of the procedure of the appointment of the Chief Justice. Over the years a convention was developed that seniormost puisne judge would become chief justice whenever the vacancy arose. The Supreme Court has held that as a matter of rule the seniormost judges of the Supreme Court shall always be appointed the Chief Justice of India if he otherwise fit to be appointed[9]. Doubts are expressed on the soundness of the interpretation of the Court on the appointment of judges and the Chief Justice. But in view of the fact that the independence of the judiciary is a basic feature of the Constitution and that the executive in the past has from time to time used the power of appointment to undermine the independence of Judiciary, against which measures similar to Court’s interpretation has been suggested and it is the court interpretation which should take care of any arbitrariness on the part of the Chief Justice by providing for a collegium[10]. Collegium convention is one of the most debatable and a review seeking convention. Let us see the emergence of the collegium system and process involved which made it a debatable issue and awful convention.

The emergence of Collegium system: The Framers of the Indian Constitution, while drafting it, understood the necessity to have an independent judicial system. Dr. Ambedkar in the Constituent Assembly Debates stated that “our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured”. The tectonic shift that took place from 1981, where a 7-Judge Bench of the Supreme Court declared that the executive would hold primacy in judicial appointments, to the judiciary getting primacy in the appointment of Judges in 1998 has resulted in a need to structure a more viable, just an acceptable process of judicial appointments[11]. The aforesaid cases are popularly known as 3 judges case where the convention of collegium system was invented and as a precedent, it was followed first time in the case of S.P Gupta vs Union of India or the first judge’s case but to understand this we need to understand the history of appointment of judges into the administration.

The history of judicial appointment begins with the enactment of high court Act, 1860 whereby High Court was set up in each province and a further appeal was set up for the privy council which is in England. In 1935 British Parliament enacted Government of India Act, 1935 section 200 of this act created the federal court at New Delhi and a federal court has the power to only entertain constitutional matter and the further case would be a move to Privy Council. After attaining Independence privy Council was removed by Privy Council Act. On 26 January 1950 Supreme Court was established where all the appeals will be finally heard. Now in the Constitution of India the provision for appointment of judge in Supreme Court is mentioned in Article 124(2) where it is mention that  Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted  Earlier it was provided in the Government of India Act, 1935 the appointment of judges to High Courts was prerogative of the crown and no provision to consult chief Justice. But when our Constitution was drafted then in Constitutional Assembly Debates it was followed that Chief Justice should be given an opportunity of consultation.

This was all history but the real tussle started in the matter appointment of Justice was that whether there will be executive supremacy or there will be judicial supremacy. Now let us look at both these aspect.

Executive Primacy-  Executive Primacy means President will be no longer under obligation to take consult with the Chief Justice but if he deems necessary for the purpose only that situation he may consult chief justice of India. The Supreme Court in Union of India vs. Sankalchand Himatlal Seth that the word consultation means full and effective consultation but President has right to take a differing view or a contrary view. Therefore consultation does not mean concurrence and therefore President is not bound by it[12]. After this come to the case of First judges case which is known as S.P. Gupta vs Union of India case where it was clearly stated that Independence of judiciary does not mean freedom of judges to act arbitrarily it means that judges must have freedom in discharging their judicial function. In order to maintain the independence of judiciary it has to be protected against interference direct or indirect, it should also follow that constitutional provision that is made should not be constructed that would undermine the institution independence. Our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary is in our opinion the safest possible safeguard not only to ensure the independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power of the President, the following important elements are introduced:

(1) a popular element in the matter of administration of justice, (2) linking with judicial system the dynamic goals of a progressive society by subjecting the principles of governance to be guided by the Directive Principles of State policy, (3) in order to make the judiciary an effective and powerful machinery, the Constitution contains a most onerous and complicated system by which Judges can be removed under Article 124(4), which in practice is almost an impossibility.

(4) in order to create and subserve democratic processes the power of appointment of the judiciary in the executive has been vested so that the head of the executive which functions through the Council of Ministers, which is a purely elected body, is made accountable to the people.

If absolute powers were to be vested in the judiciary alone for all its spheres of activities (appointment, retirement, removal, etc.) then the element of absolutism may have crept in, resulting in irreparable harm to the great judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of the judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method-

(1) by guaranteeing complete safety of tenure to Judges except for removal in cases of incapacity or misbehavior which is not only a very complex and complicated procedure but a difficult and onerous one.

(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. This important Directive Principle enshrined in Article 50has been, carried out by the CrPC, 1973 which seeks to achieve complete separation of judiciary from the executive.

(3) so far as the subordinate judiciary (is concerned the provisions of Arts, 233-236 vest full and complete control over them in the High Court. Only at the initial stage of the appointment of munsiffs or the District Judges, the Governor is the appointing authority and he is to act in consultation with the High Court but in all other matters like posting, promotion, etc., as interpreted by this Court in Samsher Singh’s case, the High Court exercises absolute and unstinted control over the subordinate judiciary. Promotion, the holding of a disciplinary inquiry, demotion, suspension of Sub Judges lie with the High Court and the Governor has nothing to do with the same. Hinting at the nature of the separation of powers brought about by our Constitution, this Court in Chandra Mohan v. the State of U.P. made the following observations

The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals[13].

Judiciary Primacy: Now another case which came up change the wave of complete this convention and made it to another aspect that is where judiciary was given primacy which means CJI opinion was most important and not much of president and the case was Supreme Court Advocate on Record vs. Union of India,1993 wherewith due to the prominence it was stated that C.J.I should be given at the utmost primacy nor the President. It was the case where writ petition was filed that to seek another view in the first judge’s case and it was stated  The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which this provision was enacted. It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was observed therein, as under, In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. The constitutional phraseology of “consultation” has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital the appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any ‘power’ or ‘right’ to appoint Judges. It is essentially a discharge of a constitutional trust in which certain constitutional functionaries are collectively repositories… What Edmond Burke said is to be recalled:

All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society. In view of the fact that the constitutional functionaries to whom the task has been entrusted discharge a ‘participatory constitutional function’, it is instructive to recall the prophetic warning of Dr. Rajendra Prasad in his speech, President of the Constituent Assembly, while moving for the adoption of the Constitution of India. He said: We have prepared a democratic Constitution. But successful working of democratic institutions requires those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions in lobbies strengthens that hope. Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend on the men who administer it. If the people who are elected are capable and men of character and integrity, they would be able to make the beat even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance. In India today I feel that the work that confronts us is even more difficult than the work which we had when we were engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating[14]. In the case of Special Reference No.1 of 1998  case which basically laid down certain principle where it was stated with support of 1993 judgment only and highlight was made there that-

  1. Consultation with the chief justice of India does not mean consultation with the chief justice and rather it requires consultation with a plurality of judges.
  2. Collegium- The chief justice of India has to form collegium of 4 senior most judges of supreme court for appointment of judges of Supreme Court
  3. Appointment of higher court judges it maintains that C.J.I for appointing of high court judges it must consult with 2 senior most judges.
  4. The opinion of collegiums judges should be given primacy.
  5. Merit is predominant but seniority should be given primacy.

Recent Development- When the concept of collegium was adopted by Indian judiciary to appoint judges was accepted by society at large at that time but recent appointment of the judges shows that they have close nexus with the seniormost judges which is very disturbing for constitution., merit is not taken into consideration now rather than closeness with the judge is now taken into consideration and many are involved in corruption. The latest example is of medical scam where C.J.I has directed for the initiation of proceeding of impeachment for Allahabad High Court Judge. Consequently after 11 years another petition was filed before the Supreme Court for reconsideration of its earlier judgements in Suraz India Trust vs Union of India basically the collegium system was challenged on certain grounds and sought to review earlier decision of five and nine judges bench by 2 judges bench  because of technical ground matter was not decided and placed before honorable Chief Justice for appropriate judgement. National Judicial Appointment Commission Act was 99 amendment brought by the government which brought Article124 A. In this article there was the role of government also in the appointment of judges but this was seen as a major intrusion of the legislature into the judiciary. This amendment struck down by the court in  Supreme Court Advocate on Record vs Union of India, 2015 in which the questions before the Court were that whether the Collegium system is an established mechanism for an appointment or the Parliament has any authority to create another alternative for the same. Agreeing with the contention of Attorney General Mukul Rohatgi, Chelameshwar, J. observed that the 99thAmendment does not abrogate the basic structure of the Constitution, as it does not invest the absolute power to the President to appoint or transfer judges. Furthermore, the NJAC Act ensures that no unworthy candidate shall be appointed as a Judge as long as 2 members from the Commission view the candidate to be incompetent. He further added that the presence of the Law Minister does not in anyway undermine the independence of Judiciary but his exclusion would severely undermine the say of a democratic government chosen by the people and would be destructive to the basic feature of checks and balances.

Conclusion

The Constitutional Convention is a good concept but it was not used as much as in benefit they should be taken out of it. Hereby they mean the legislature for whom convention concept was brought to help the nation and the society with the advancement in political as well as the technological scenario. Collegium or appointment of Prime Minister is an open-ended debate but we have to look into the other side of the coin and when we see from that point of view then we can say that any convention whether of collegiums or Prime Minister appointee it is the sole intention which makes any convention successful or unsuccessful.It was the vision of P.V Narasimha Rao government who uses the economic convention too liberalize the Indian economy and revive the same. After looking into the debatable events we can only comment that sole good convention is not the criteria to be successful but people ability and intention also matters. It same as rising and demise of the collegium system once it was appreciated but now times have come that it has come in the ground of critical review.

References-

[1] 9 Black Law Dictionary 202(2 edition 1912)

[2] Supreme Court Advocate on Record vs. U.O.I(1993) 4 SCC 441

[3] 2H.M. Seervai  Constituional Law of India 2706,(3 edition, 1984)

[4] 1 V.N.Shukla  Constituion of India 346(10 edition,2001)

[5] Dinesh Chandra vs. Chaudhry Charan Singh, AIR 1980,SC 114

[6] Subhash Sharma vs Union Of India, 1991, SCC 574

[7]  S.C.Advocates on Record vs. Union of India, AIR 1994 SC 268

[8] S.P.Gupta vs. Union of India, AIR 1982 SC 149

[9] M.P Singh Securing Independence of Judiciary 245(10 edition,2000)

[10] ibid

[11]  http://blog.scconline.com/

[12] U.O.I vs Sankalchand Himatlal AIR 1977 SC 2338

[13] ChandraMohan vs State of U.P AIR 1980 SCC 213

[14] Supreme Court Advocate on Record Association vs Union India

5
Nov

JUDICIAL REVIEW

MANISHEK KR. SINGH, LEGAL NEWS REPOTER

  • INTRODUCTION:-

One of the most important features of the Judiciary is the power of Judicial review. Judiciary review is the power of the supreme court and the High Court to examine the constitutionality of the Acts of the Parliament and the state legislature and executive order of both centre and state government.

According to Redform “ judicial Review is the power of the court to enquire whether a law, executive order or other official action conflicts with written constitution and if the court concludes that it does, declare it unconstitutional and void”. The Judiciary by using this power keeps check on the legislative and the executive organs of the Government within the purview of the Constitution. It is one of the most essential element for the successful and smooth running of federal form of government.

 

  • ORIGIN:-

The Doctrine of Judicial Review is one of the invaluable contributions of the U.S.A to the political theory. The concept of the judicial review was developed by chief Justice Marshall of the American Supreme Court in the famous case of Marbury vs. Madinson in 1803

In the case Chief Justice Marshall laid down that the Judiciary has the power to examine the laws made by Legislature and at the time if it is found that the laws made is contrary to constitutional Provisions then it is declared to be void.

 

  • OBJECTIVES:-
  1. Judicial Review is important because law passed by legislature need to be checked to make sure they are Constitutional.
  2. Judicial review is essential to establish a federal system of government so that it can check and balance the organs of the government.
  • It is necessary for the smooth running of the federal system of government.
  1. It is necessary to put check on the arbitrary decision of the organs of the government.
  2. It is necessary for the independence of the Judiciary.
  3. It is important so that it protects individual rights from arbitrary encroachment of legislature functions.

 

  • JUDICIAL REVIEW IN INDIA:-

The very feature of judicial review is also implemented in India but has not been mentioned in the constitution directly. Accordingly the constitutional validity of legislature enactment or an executive order may be challenged in the Supreme Court on the following grounds.

 

  1. Violation of Fundamental Rights.
  2. Outside the Competence of the authority which has framed it.
  • It is repugnant to the Constitutional Provision.

The foundation of the Indian Supreme Court Review Power was firmly laid down in the case of A.K Gopalan vs. State of Madras (AIR 1950 SC) in the case guidelines regarding the judicial review have been laid down.

Various provisions in India Constitution explicitly provides for the power of judicial review to the court such as Article 13,32,131,136,141,143,226,227,245,246 and 372.

In the case of Shri Sitaram Sugar co. ltd vs. Union of India

In the case the Court, in exercise of Judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonable supported by evidence. The principles of judicial review would apply to the exercise of contractual powers by government’s bodies in order to prevent arbitrariness or favoritism.

  • CURATIVE PETITION:-

Curative petition is an another form judicial review which is defined in the case of Rupa Ashok Hurra vs. Ashok Hurra (AIR 2002 SC) in which a five judge constitutional bench of the Supreme Court has unanimously held that in order to rectify gross miscarriage of justice in its final judgment which cannot be challenged again the court will “allow” curative petition by the victim of miscarriage of justice to seek a second review of the final order of the court. To entertain a curative petition there are following requirements:

  1. Court reaffirms that litigants are barred on challenging final decisions.
  2. But in cases of miscarriage of justice it would be its legal and moral obligation to rectify the error.
  • The petitioner will have to establish that there was a genuine violation of Principles of natural justice and fear of the bias of the judge and judgment that adversely affected him.
  1. The curative petition must accompany certification by a senior lawyer relating to the fulfillment of the requirements.
  2. The petition is to be sent to the three judges of the bench who passed the judgment affecting the petition.
  3. They could also impose “exemplary costs” of the petitioner in his pleas lacked merit.

 

  • CONCLUSION:-

Judicial reform is among one of the topics which has widest scope in the judiciary and also the role to play in it. It is near about impossible to define the role and importance of judicial review in the judicial system as it is present everywhere in the system.

 

 

 

 

 

26
Sep

10 Constitutional Landmark Judgement

Disha Dheeman, BA LL.B(H), Legal News Reporter

 

Landmark judicial decision changed the constitutional as well as everyday life. Their impact still replicate.

1)FUNDAMENTAL RIGHT CASE

                                             Keshvanand Bharti v. State of Kerala

                                            AIR 1973 SC 1461: (1973) 4 SCC 255

                                                  Date of decision: 24-04-1973

In this case, the constitutional validity 24th Amendment Act 1971 was challenged. 24th Amendment was enacted by the Parliament which amended Article 368 that Parliament has constituent power to amend by way of addition, variation or repeal any provision under the article of the constitution in which Article 13 would not be applicable to such amendment.

The validity of the 24th Amendment on which the validity of the 25th, 26th and 29th Amendment would depend, and this was the principle issue.

This case was decided by 13 judges bench including S.M Sikri, C.J, and A.N Grover, A.N ray, H.R. Khanna, D.G Palekar, J.M Shelat, K.S Hegde, S.N. Dwivdei, M.H. Beg, F. Jagamohan Reddy and Y.V Chandrachud that Parliament cannot destroy the basic features of the Constitution. The majority opinion of the judges was that no part of the Constitution (Fundamental Rights), was beyond the Amending power of the Constitution, basic structure of the Constitution cannot be infringed.

2)ELECTION CASE

                                                   Indira Gandhi v. Raj Narain

                                             AIR 1975 SC 22299: (1975) SCC 1:

                                                 Date of Decision: 07-11-1975

In the case of Indira Gandhi, an Appeal was filed by an appellant against the decision of the Allahabad High Court in which Mrs. Gandhi’s election held invalidating on the corrupt practices ground.

The principle issue was the question involved of the validity of clause 4 of the Constitution 39th Amendment Act, 1975.

5 Judges bench including A.N. Ray, C.J and H.R. Khanna, K.K Mathew, M.H Beg and Y.V Chandrachud held that clause 4 of the Constitution 39th Amendment Act,1975 is void and unconstitutional because exclusion of the Judicial review in the election disputes can affect the basic structure of the Constitution. Court struck down the clause as it was violating the free and fair elections.

3)ADMISSIONS ON CASTE BASIS FOR PROFESSIONAL COURSE

                             

                          State of Madras v. Champakam Dorairajan

                             AIR 1951 SC 226 (1951) 2 SCR 525

                                    Date of Decision: 09-04-1951   

Champakam Dorairajan made an application to the High Court at Madras under Article 226 of the Indian Constitution for protection of the fundamental rights under Article 15(1) and Article 29(2) and requested to issue the writ of mandamus or any other suitable writ. State of Madras and officers observed that admissions into the Madras Medical Colleges were sought that it involves the violation of her fundamental rights when she came to know that her admission would not be possible as she belongs to the Brahmin community.

It was argued that violation of Article 15(1) and 29(2) is violation of her fundamental rights of the Indian Constitution.

This case was held by Harilal Kania, C.J and S.Fazal Ali, Patanjali Sastri, M.C Mahajan, B.K Mukherjea, S.R das and Vivin Boes  that refused admissions only on the grounds of religion, race, caste, language or any of them then it is a violation of the fundamental rights. This right is not to be denied on such grounds to any citizens and the provision of Article 29(2) in part 3 of the Constitution is void under Article 13.

4)BASIC STRUCTURE OF THE CONSTITUTION CANNOT BE AMEND BY PARLIAMENT

                                       Golakhnath v. State of Punjab

                                AIR 1967 SC 1642: (1967) 2 SCR 762

                                      Date of Decision: 17-02-1967

In this case, issues were whether power to amend the Constitution resides under Article 368?   whether the F.R in part 3 can be amended or not?

This was held by K. Subha Rao, C.J. and C.A. Vaidialingam, G.K. Mitler, J.C Shah, J.M Shelat, K.N. Wanchoo, M.Hidayatullah, S.M. Sikri, V.Bhargava, R.S. Bachawat and V.Ramaswami that fundamental rights cannot be infringed or taken away by the amending procedure in Article 368 of Indian Constitution. Changes to the constitution is law within the meaning of Art 13(2) of the Constitution and therefore it is subject to the part 3 of Constitution. Amendment under Art 368 or any other provision of the Constitution are only made by the; Parliament.

5) TAKEOVER BY A MILL BY THE CENTRAL GOVERNMENT

                                                  Minerva mills ltd. V. Union of India

                                                 AIR 1980 SC 1789: (1980) 3 SCC 625

                                                       Date of Decision: 31-07-1980    

The Constitutional validity of 39th and 42nd Amendment was challenged by the petitioner. He also challenged sec 4 and sec 55 of 42nd Amendment Act of 1976 and the validity of Article 368(4) and Art 368(5) of the Constitution.

It was held by the judges: Y.V Chandrachud, C.J. and A.C Gupta, N.L Untwalia, P.N. Bhagwati, and P.S Kailasam, that sec 55 of the Constitution 42nd Amendment Act is beyond the amending power of the parliament, is void if it destroys or damage the basic structure of the Indian Constitution. Article 31(C) held unconstitutional as it destroys the basic and essential features of the Constitution. Article 368(4) and Art 368(5) are also held unconstitutional in that it removes all limitations on the amending power of the parliament.

Sec 55 and sec 4 of the Constitution 42nd amendment Act are held as void and unconstitutional. Art 31C and Art 368(4) and (5) are also held as unconstitutional and void.

6) ILLEGAL DETENTION FOR 14 YRS. AFTER ACQUITTAL BY THE COURT

                                             Rahul Sah v. State of Bihar

                                       AIR 1983 SC 1086: 1983 Cri Lj 1614

                                            Date of Decision: 01-08-1983

The principle issue of this case was whether S.C under Art 32, can pass an order of compensation for infringement of fundamental right by officers or not?

Art 32 of the Constitution confers the power on the S.C to issue directions or orders or writs, whichever may be appropriate for the enforcement of any rights conferred by part 3. It was held by Y.V Chandrachud, C.J. and Ranganath Mishra and Amarendra Nath Sen that Supreme Court can pass an order of compensation for the infringement of fundamental rights under art 32 of the Constitution if such an order is the nature of compensation consequential upon the deprivation of a fundamental rights.

7) SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

                                                   Vishakha v. State of Rajasthan

                                                    AIR 1997 SC 3011: 1997 (5)

                                                    Date of Decision: 13-08-1997

NGOs and other social activists filed writ petition in the Supreme Court for the enforcement of the fundamental rights of working women under Art 14,19 and 21 of the Constitution of India. The issue was Sexual Harassment of working women at workplace.

Judgement of this case was given by J.S. Verma and Mrs. Sujata V. Manohar and B.N. Kripal, it was held that it is violation of the fundamental rights of ‘Right to Life and Liberty’ and ‘Gender Equality’ if there is sexual harassment of women at workplace. It is the violation of Art 14,15,19(1)(g) and 21 of the Constitution.

8)  CONSTITUTIONAL VALIDITY OF DEATH SENTENCE

                                                      Bachan Singh vs. State of Punjab

                                                         AIR 1980 SC 898: 1982 (1)

                                                        Date of Decision: 09-05-1980

In this case Bachan Singh was appellant who was tried and convicted to death sentence under sec-302 of Indian Penal Code, by Session Judge. His death sentence confirmed by High Court and dismissed his appeal, then he goes through the special leave appeal to the Supreme Court.

The principle issue of this case was to check the constitution validity of death sentence for murder provided in section 302 IPC.

It was held by Y.V Chandrachud, C.J. and A.C. Gupta, N.L. Untwalia, P.N. Bhagwati and R.S Sarkaria, that sec 302 of the Indian Penal Code yet provides for the death sentence as Section 354(3) of Code of Criminal Procedure, 1973 is constitutionally valid.

Challenge to the constitutionality of the questioned provisions mentioned in Section 302 of Indian Penal Code and Sec 354(3) of the Criminal Procedure Code, 1973 is excluded.

9) RIGHT TO PRIVACY

                                Justice K.S Puttaswami and Anr. v. Union of India and Ors.

                                         WRIT PETITION (CIVIL) NO 494 OF 2012          

                                                     Date of Decision: 24-08-2017

In this case, nine judges bench assembled to determine whether privacy is a constitutionally protected value.

 Justice D.Y Chandrachud overruled the judgement of Justice Y.V Chandrachud and held that Right to Privacy is Fundamental right under Article 21 of the Constitution. The decision in M.P Sharma is over ruled, which says that right to privacy is not protected by the Constitution. The decision in Kharak Singh stands over ruled to the extent that right to life and personal liberty is not protected by the Constitution.

This is a landmark case by the Supreme Court of India that right to privacy is protected under Art 21 of part 3 of the Constitution, but not an absolute right and there are some restrictions in matters of national security and mutual interest of the citizens and the state.

 

10) TRIPLE TALAQ UNCONSTITUTIONAL

                                          Shayara Bano vs union of India and Ors

                                               Writ petition (C) No 118 of 2016     

                                               Date of Decision: 22 August 2017

Issue of this case was that certain practices of Muslim Personal laws such as Triple Talaq, Polygamy and Nikah halala has been challenged. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious laws.

A 5 judges Constitution bench including chief Justice J.S Khekhar, Justice Kurian Joseph, Justice Rohinton Nariman, Justice Uday Lalit and Justice Abdul Nazeer deal with the Constitutional validity of the Practice of ‘Instant triple talaq’ or ‘talaq-e-biddat’ held that triple talaq cannot be justified or given legal validity. The practice of triple talaq is discriminatory in many ways.

Supreme Court says that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq e biddat constitutes an integral part of the Islamic faith and it does not deserve constitutional protection.

1
Jun

Kerala HC v Madras HC on Cow Slaughter

The Ministry of Environment and Forests on 26th May’2017 notified new rules under the Prevention of Cruelty to Animals Act, 1960, banning the sale of cows and buffaloes for slaughter at animal markets across India. This unprecedented move of Govt. through notification rose to several controversies. Prominent amongst them were that the ban is contrary to parent Act, 1960, and that it violates Article 19 (1) (g) and 21 of the Constitution. It has been held in in Hinsa Virodhak Sangh vs Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33, and In Re Ramlila Incident (2012) 5 SCC 1 that what one eats is one’s personal affair and forms part of right to privacy under Article 21.

Ms. S. Selvagomathy, an activist-cum-lawyer based in Madurai, filed a PIL in High Court of Madras under Article 226, which was granted an urgent hearing by the Division Bench comprised of M.V. Muralidaran. J. and C.V. Karthikeyan. J., on request of Senior Counsel M. Ajmal Khan. Based on the argument of Ms. S. Selvagomathy that the notification is repugnant to section 26 of the parent Act, 1960, the Madurai Bench of the High Court of Madras on 30th may’2017 granted a four weeks stay on the operation of the recently notified Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017.

On contrary to this, A Division Bench of Kerala High Court comprising Chief Justice Navniti Prasad Singh and Justice Raja Vijayaraghava dismissed the PIL challenging the Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017. The Petition, filed by MLA Hibi Eden and meat shop owner P.U. Kunju Muhammed, contends that the Rules violate Articles 14, 19 & 21 of the Constitution of India, and that they amount to a colorable exercise of the power, encroaching upon legislative domain of state legislature.

The Bench observed that the new notification does not impose any restrictions on the sale of beef or slaughter of cattle. It said the restrictions were on the sale of cattle used for agriculture purpose at animal markets. The rule did prevent anyone from buying or selling cattle outside the market, however, these preparations mediated terrestrial and cosmic forces into the soil. Following the Court interpretation of the notification, the petitioner withdrew the PIL but the situation is still in dilemma for the territory outside the jurisdiction of Kerala High Court and Madras High Court. Both the court with conflicting order have created yet another issue which shall be taken into consideration by apex Court.

Related Video

2
Apr

When freedom of religion conflicts with other freedom

It is imperative that if any individual or group of persons, by their action or caustic and inflammatory speech are bent upon sowing seeds of mutual hatred, and their proposed activities are likely to create disharmony and disturb the equilibrium, sacrificing public peace and tranquillity, strong action and more so, preventive action are essentially and virtually needed to be taken. any speech or action which would result in ostracisation of communal harmony would destroy all those high values which the Constitution aim at. Whenever the authorities concerned in charge of law and order find that a person’s speeches or action are likely to trigger communal antagonism and hatred resulti9ng in fissiparous tendencies gaining foothold, undermining and effecting communal harmony, prohibitory orders need necessarily to be passed to effectively avert such untoward happenings. It was also held that no person, however big he may be or claim to be, should be allowed irrespective of the position be may assume or claim to hold in public to either act in a manner or make speeches which would destroy secularism recognised by the constitution. Communal harmony should not be made to suffer and be made dependent upon the will of an individual or group of individuals, whatever e their religion, be it of a minority or that of majority. Persons belonging to different religions must feel assured that they can live in peace with the persons belonging to other religion.

Since freedom under Article 25 belongs to every person, the freedom of one cannot encroach upon similar freedom belonging to other person. The right guaranteed under this Article does not extend to creating hatred amongst two groups of persons practicing different religion.

Also that, a religious speech may be restricted on the ground that it is injurious to national security or safety which is indicated by the expression ‘security of the state’ in Article 19 (2).

Read: Relationship between directive principles of state policy and fundamental rights

In other context, namely, election, the Supreme Court in Vimal v. Bhagiji [AIR 1995 SC 1836] has held that the use of religion for electioneering has been made punishable by section 123 (3) and 123 (3A) of Representation of People’s Act.

Thus, where the speech is used for  a religious purpose, e.g, for the purpose of professing or propagating one’s religion, it should be subjected to the limitations which are imposed by Article 19 (2) as held in Subhash Desai v. Sharad J. Rao, [AIR 1994 SC 2277].

25
Mar

The modern concept of definition of state under Article 12 of the Constitution

Article 12 of the Constitution reads as under;

            “In this part unless the context otherwise requires “the State” includes the (1) Government and Parliament of India and the (2) Government and the legislature of each State or (3) all Local or (4) other authorities within the territory of India or under the control of the Government of India.”

The restrictive interpretation of principle of ejusdem generis was mentioned in University of Madras v. Shantha Bai, [AIR 1954 Mad 67], the Madras High Court held that other authorities could only indicate authorities of a like nature i.e, ejusdem generis. So construed, it could only mean authorities exercising Governmental or Sovereign function. This restrictive interpretation of Madras High Court was rejected by the Supreme Court in Ujjambai v. State of U.P. [AIR 1962 SC 1621]. It was held that ejjusdem generis rule could not be resorted in interpreting this expression as there is no common genus running through these named bodies in Article 12 nor can these bodies be so placed in one single category or any rational basis.

In Electricity Board Rajasthan v. Mohan Lal, [AIR 1967 SC 1857], a narrow interpretation was done by the Supreme Court in earlier cases was refuted.

Read: Whether judiciary is state under Article 12 of the Constitution?

The modern concept of State given by Justice Matthew was finally summarised by Justice P.N. Bhagwati in R.D. Shetty v. Airport Authority, [AIR 1979 SC 1628], where is was held that if a body is an agency or instrumentality of Government it may be an “authority” within the meaning of Article 12 whether it is a statutory corporation, a Government Company or even a registered Society. the Court laid down the following tests for determining whether a body is an agency or instrumentality of the Government.

  • Financial resources of the State in the chief funding source.
  • Existence of deep and pervasive State control.
  • Functional character being governmental in essence i.e, if the functions of the corporation are of public importance and closely related to governmental function.
  • If a department of government is transferred to a Corporation.
  • Whether the corporation enjoys monopoly status which is State conferred or State protected.

The Court said these tests are not conclusive but illustrative only and will have to be used with care and caution.

Some landmark judgment in defining State under Article 12 of the Constitution of India

In Ajay Hasia v. Khalid Mujib [AIR 1981 SC 487], it was held that a society registered under the Societies Registration Act, 1898 is an agency or instrumentality of the State and hence a State within the meaning of Article 12.

In M.C. Mehta v. Union of India [AIR 1987 SC 1086], without deciding the question, finally in an unanimous opinion of the Supreme Court, Chief Justice P.N. Bhagwati has advanced, strong arguments for including the non-government companies within the meaning of “State”, if for reasons of State control of registration & the kind of public function they are performing satisfy the test of being an instrumentality or agency of the Government. Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression “state”.

In Lt. Governor Delhi v. V.K. Sodhi [(2007) 10 SCALE 41], it was held that the entity which is under Article 12 does not become the State Government. The employees of such body are not holders of civil post or employees of the State Government.

In Pradeep Kumar Biswas v. Indian Institute of Chemical biology, the seven Judge Bench by majority 5:2 overruled Sabhajit tewary case relying upon the instrumentality or agency test formulated in Ajay Hasia, the Court observed as under;

            “Not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be, whether in the light of the cumulative facts as established, the body is financially, functionally and administrative dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within the Article 12. On the Other hand, when the control is merely regulatory whether under or otherwise, it would not serve to make the body a State.’

In Rajasthan SEB v. Mohan Lal and Sukhdev Sinngh v. Bhagat ram Sardar Singh Raghuvanshi, the Supreme Court noticing the socio-economic policy of the country thought it fit to expand the term “other authorities” to include bodies other than statutory bodies. The development of law of judicial interpretation culminated in the judgment of the seven Judge Bench in the case of Pradeep Kumar Bishwas case. it has also been noted that in the meantime the socio-economic policy of the Government has changed and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh case is not in existence at least for the time being. It shall be borne in mind that in a democracy there is a dividing line between a State enterprise and a non-state enterprise, which is distinct, and the judiciary should not be an instrumental to erase the said dividing line unless required.