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Feb 07, 2024

National Legal Services Authority v. Union of India

Introduction The National Legal Services Authority v. Union of India (2014) marked a pivotal moment in the history of transgender rights in India when they filed a writ petition demanding better protection of trans peoples’ lives. This landmark judgement by the Supreme Court recognized transgender individuals as the "third gender," granting them fundamental rights under the Indian Constitution. This article delves into the key facts, impact, and future directions surrounding this case. Background In 2012 and 2013 two writ petitions were filed by National Legal Service Authority and Poojya Mata Nasib Kaur Ji Women Welfare Society. These organisations worked for the protection of rights of the Kinnar (Transgender) Community. Lazmi Narayan Tripathi, a member of the Trans community approached the court with the contention that rights guaranteed by Article 14 and 21 were being denied to the Hijra Community, creating discrimination. Issues of the case The key issue of the case was whether transgender individuals should be recognized as a third gender and given legal protection under the Indian Constitution? The court also decided over whether there is a breach of fundamental rights of transgender individuals. Article 14; Equity before Law Article 14 of the Indian Constitution guarantees equality before the law or equal protection of the laws within the territory of India. This means that all persons, regardless of their religion, race, caste, sex, place of birth, or any of them, are entitled to the same legal protection and treatment by the State. Article 21; Right to Life and Personal Liberty Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty. This means that no person shall be deprived of these rights except according to procedure established by law. Arguments and Issues raised The petitioner argued that the transgender community in India faces widespread discrimination and marginalisation in areas such as education, employment, healthcare, and housing due to lack of legal recognition and protection. They claimed that the binary gender classification system under the Indian Constitution does not accurately represent the diverse gender identities and expressions in India, leaving transgender individuals vulnerable to discrimination. Additionally, they alleged that the government has failed to take sufficient measures to address these issues, leading to a violation of the transgender community's fundamental rights, including the right to equality, dignity, and non-discrimination. The Respondents claimed that the Constitution already provides sufficient protections for all citizens, including transgender individuals. Recognizing a third gender could cause administrative complications and marginalise an already vulnerable group. Additionally, they argued that the government has taken measures to help the transgender community without needing specific legal recognition. The respondent also contended that it was unnecessary to create a separate gender category in official documents since transgender identities can be recognized within the existing male/female categories. Judgement April 15, 2014, the Supreme Court of India ruled in favour of the National Legal Services Authority (NALSA) in a landmark case that recognized the rights of transgender individuals in the country. This historic judgement acknowledged transgender people as a distinct gender group and granted them legal protection and recognition under the Indian Constitution. In its ruling, the Court held that transgender persons are entitled to the same fundamental rights as other citizens, including the right to self-identify their gender. The Court further emphasised that gender identity is an intrinsic aspect of one's identity that cannot be reduced to biological characteristics alone. To address the marginalisation and discrimination faced by the transgender community, the Court directed the Government to implement measures such as reserved seats in education and employment opportunities. This progressive verdict represented a significant milestone towards ensuring equal treatment and protection for transgender individuals in India. By recognizing their inherent dignity and worth, the Court's decision helped create a more inclusive society where diversity is valued and respected. Conclusion In India, the right to self-identification of gender is protected under the constitution as an essential aspect of dignity and personal autonomy. The Supreme Court's landmark ruling in NALSA v. Union of India recognizes the legal identity of transgender individuals and their right to self-identify, paving the way for greater inclusivity and equality in India.

Tripti

Dec 06, 2023

Indira Gandhi v. Raj Narain and Anr.

Citation: (1975) 2 SCC 159 Case Name: Indira Gandhi vs Raj Narain The case of Indira Gandhi v. Raj Narain and Anr. is one of the most significant legal battles in the history of Indian democracy. Mrs Indra Gandhi, the then prime minister of India was accused of electoral malpractice when she got re-elected as the Prime minister by one Mr Raj Narain. Background The case is of 1971 general elections in India, where Indira Gandhi sought re-election as Prime Minister. Indira Gandhi, leader of the Indian National Congress, contested the general elections held in 1971, winning by securing 352 seats out of 518. Raj Narain, an opposition candidate from Rae Bareli, contested her victory and alleged several electoral malpractices included the accusation of use of government machinery for the election campaign, bribery, booth capturing, and misuse of state resources to influence voters. The case was filed in the Allahabad High Court, and Justice Jagmohanlal Sinha presided over the proceedings. Contention of the parties One of the central contentions was that Indira Gandhi had used government officials and resources for her election campaign, which was against electoral norms code as written under Representation of People’s Act, 1951. It was alleged by Raj Narain that bribery had been employed to influence voters, raising concerns about the fairness of the electoral process. Furthermore, Booth capturing, a practice where unauthorised individuals seize control of polling booths to manipulate the voting process, was alleged to have occurred during the election. During the trial, Indira Gandhi and her legal team vehemently denied the allegations, arguing that the election was conducted fairly and that there was no evidence to support the accusations. Verdict of the Allahabad High Court On June 12, 1975, Justice Jagmohanlal Sinha delivered a historic verdict, declaring Indira Gandhi's election from Rae Bareli void. The court held that she had indulged in corrupt electoral practices, marking the first instance of an Indian court nullifying the election of a sitting Prime Minister. As a consequence of the verdict, Indira Gandhi was not only unseated from her parliamentary seat but was also disqualified from holding any public office for six years. The ruling triggered a series of events that led to the imposition of a state of emergency in India, with civil liberties suspended and political opponents arrested. The legal battle did not end with the Allahabad High Court's verdict. Indira Gandhi appealed to the Supreme Court of India, seeking a reversal of the decision. This appeal came at a time when the Supreme Court was on a vacation and hence the vacation bench ordered an executional stay on the High Court's decision by Justice Krishna Iyer. Meanwhile, the then president Fakhruddin Ali Ahmed declared National Emergency on grounds of Political and internal disturbances and through the 39th amendment, Article 329A was introduced. Article 329A The Article put down Special provision as to “elections to Parliament in the case of Prime Minister and Speaker”. This stipulated that the election of the Prime Minister and Speaker could not be contested in any Indian court. As a result of this amendment, the Supreme Court's authority in the Indira Gandhi case was curtailed. Issues before the court In the Supreme Court the main issue presented was the Constitutional validity of Article 329A. Further the validity of “Representation of People’s (Amendment) Act, 1974”, “Election Laws (Amendment) Act, 1975” and the election of Indira Gandhi was itself questioned. Contention of the Parties The respondent claimed that Article 329A eliminates the jurisdictional authority of the courts. The constitutional setup in our country emphasises the separation of powers among the three branches of government. Therefore, it is unjust to the judiciary if its powers to adjudicate are nullified or diminished. They further contended that the principles of the rule of law and judicial review are integral to our constitution, and they cannot be harmed or altered, as established in fundamental rights cases. Supreme Court Judgement The Honourable Court, with a majority decision, ruled that the Amendment Acts are incompatible with the Basic Structure of the Indian Constitution. Consequently, these acts were invalidated on the basis that they infringe upon the court's jurisdiction and undermine the principle of judicial review. The Supreme Court, relying on the landmark ruling in the Kesavananda Bharati case, declared Article 329A, clause 4, as constitutionally invalid. The court was of the view that the Amendment's alteration was considered to violate the principle of “separation of powers”, as it placed an impartial legal function under the authority of Parliament. The Supreme Court, in a split 4-1 decision, upheld the lower court's verdict but modified the disqualification period to six years from the date of the decision. The lone dissenting judge, Justice Khanna, delivered a powerful dissenting opinion, asserting the importance of judicial independence and upholding constitutional values.

Tripti

Nov 29, 2023

Case Law: I C Golaknath and Ors v. State of Punjab (1967)

Case: Golaknath v. State Of Punjab Citation: 1967 AIR 1643, 1967 SCR (2) 762 Facts of the case In the year 1953, Henry and William Golaknath, two farmers from Jalandhar, Punjab who owned around 500 acres of agricultural land, were confronted by the Punjab government and ordered to forgo 470 acres of their land holdings as under the recent “Punjab Security and Land Tenures Act 1953”, they would only be allowed to hold 30 acres. This meant that the 470 acres of land will be declared surplus and taken over by the government of Punjab. This Act came after the 17th Constitutional Amendment which modified Article 31A and the 9th Schedule of the Constitution. The Golaknath brothers, dissatisfied with this limitation, decided to contest the Punjab government's actions in the Family court, leading to the elevation of the case to the Supreme Court in 1965. Punjab Security and Land Tenures Act 1953: The Punjab Security and Land Tenures Act of 1953 was a piece of legislation enacted in the Indian state of Punjab. The primary purpose of this act was to regulate the rights and obligations of landowners and tenants, particularly in the context of agricultural land. Post-Independence Agrarian Reforms: The period following India's independence saw a wave of agrarian reforms aimed at addressing issues of land ownership, tenancy, and ensuring social justice. Various states, including Punjab, implemented land reform measures to bring about equitable distribution of land and alleviate the agrarian crisis. Land Ceiling and Tenancy Regulations: The Punjab Security and Land Tenures Act was part of the broader legislative framework that sought to address concerns related to large landholdings, absentee landlordism, and the rights of tenants. Issues of the case The petitioner’s contested the new Act under Article 32, claiming that the Act denies them the constitutional right to hold property and practise any profession [provided under Article 19 of the Indian Constitution]. It was before the courts to decide whether the parliament, through any act, can limit the rights given under the Indian Constitution. The court considered the broader issue of whether the Parliament possessed the authority to amend/limit Fundamental Rights under Article 368 through introduction of a new Act(s). Furthermore, the court scrutinised the constitutional validity of the 17th Amendment. Contentions of the Petitioner The petitioners, Henry and William Golaknath, argued against granting Parliament the power to amend or alter the Constitution of India. They contended that the term "amend" should only pertain to making minor adjustments, not an outright replacement or overhaul of a Fundamental Right. Further, they argued that Article 13 prohibits any state or central government from making any amendments that limit the rights mentioned under part III of the Constitution. Article 13(3)(a):Article 13 of the Indian Constitution is a crucial provision that deals with the laws inconsistent with or in derogation of Fundamental Rights. It plays a pivotal role in safeguarding the fundamental rights granted to Indian citizens and ensures that no law enacted by the legislature infringes upon these rights. Clause 3(a):This subclause clarifies that the term "law" in Article 13 includes not only existing laws (as mentioned in Clauses 1 and 2) but also any amendment to a law made by the legislature in the exercise of its constituent power to amend the Constitution under Article 368. In simpler terms, if there is any amendment made to the Constitution that violates or abridges the fundamental rights, Article 13(3)(a) ensures that such an amendment would also be considered void to the extent of its inconsistency with fundamental rights. Landmark Judgment: On February 27, 1967, the Supreme Court, with its largest-ever bench at the time, delivered the judgement in favour of the Golaknath brothers by a slim 6:5 majority. The court held that the Fundamental Rights enshrined in Part III of the Constitution were immune from amendments under Article 368. Further they stated that if any of such rights provided under part III are to be amended, a new constituent assembly must be convened for making a new constitution or radically changing it. The court ordered that any “Amendment” to the Constitution of India is to be considered ordinary law and has to pass the test of Article 13, where in and individuals rights are being protected This landmark decision marked a significant departure from the precedent set by the case of Shankari Prasad v. Union of India (1951), wherein the court had upheld Parliament's authority to amend all aspects of the constitution, including Part III relating to Fundamental Rights. Consequently, the Golaknath case resulted in Parliament losing its power to amend fundamental rights. Consequences and Legacy: The Golaknath case left an indelible mark on the constitutional history of India. It reinstated the supremacy of Fundamental Rights and reinforced the idea that these rights were beyond the reach of parliamentary amendments under Article 368. The decision established a precedent that shaped subsequent interpretations of constitutional law and set the stage for future legal battles over the scope of parliamentary authority. The judgement, with its far-reaching consequences, played a crucial role in defining the limitations of parliamentary authority and reaffirming the sanctity of the Constitution as the foundational document of the Indian Republic.

Tripti

Oct 31, 2023

Same-Sex Marriage Hearing In India

Case - Supriyo and Anr v. Union of India Citation - W.P.(C) No. 1011/2022; Diary No. 36593/2022 The Supreme Court of India on April 18, 2023, began hearing a series of petitions seeking legal recognition of same-sex marriage in India under the Special Marriage Act. The Special Marriage Act[1] of 1954 provides a civil form of marriage for couples who cannot marry under their law. The main petitioners of the case, Supriyo and Abhay Dang, argue that the non-recognition of same-sex marriage amounts to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples. The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by the law”. The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for the recognition of marriage, filing an intervention application to assist the court with the impact of such marriages on children. On the other hand, the respondents, including the Central government, the national child rights body NCPCR, and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions. The Centre has maintained its stance against marriage equality, invoking that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India. In its submission to the Supreme Court, the Centre has called this petition, a voicing of “urban elitist views”. According to the Centre, the judiciary should leave the task to the Parliament, the people would decide whether such a marriage is socially and religiously acceptable or not. Here’s the chronology of how the case reached the Constitution Bench of the Supreme Court: November 25, 2022: Two gay couples moved the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea that, The petitions sought that the Special Marriage Act be made gender-neutral by taking down any gender-or sexuality-based restriction. The court had noted that in a similar case before the Kerala High Court, the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC. The court also took note of petitions pending before various courts on the same subject, including one petition before the Kerala HC and eight others before the Delhi HC. A two-judge bench led by Chief Justice of India DY Chandrachud then issued a notice and sought a response from the Central government, and the Attorney General for India. December 14, 2022: The Supreme Court issued a notice in another plea filed by a same-sex couple. The married couple, including one Indian national and one US citizen, sought legal recognition of their marriage under the Foreign Marriage Act, of 1969. Transfer of cases from High Courts to Supreme Court: January 6, 2023: The Supreme Court directed the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts to the Apex Court. A bench headed by CJI DY Chandrachud transferred all petitions pending on the issue before different high courts, including Delhi, Kerala, and Gujarat. The top court posted to March 13 the hearing of petitions seeking recognition of same-sex marriage under various Acts, including the Special Marriage Act, the Foreign Marriage Act[2], and the Hindu Marriage Act[3]. The government was asked to file its response to the pleas by February 15. The court said multiple petitions are pending before different high courts involving similar issues and should be transferred to and decided by the Apex court. The court also granted liberty to petitioners to argue before the court virtually. The court appointed nodal counsel on behalf of both sides to assist the court. The CJI suggested the Solicitor General and the petitioner's counsel discuss and identify the issues to be argued. The CJI also said that 3-4 lead counsels can be decided by the petitioners to ensure there is no repetition. The court had earlier issued notice on some of the pleas and had sought the Centre’s response to two pleas filed by two gay couples, seeking the solemnisation of same-sex marriage under the Special Marriage Act, of 1954. The SC appointed Advocate Kanu Agarwal as the nodal counsel for the Union of India and Advocate Arundhati Katju for the petitioners, to assist the court. January 30, February 10, February 20, & March 3, 2023: The Supreme Court issued notices on more petitions filed seeking similar relief and tagged them with the main case. March 12, 2023: The Centre filed an affidavit before the SC opposing same-sex marriage, stating that the concept of an Indian family involves a biological man and woman and it won’t be possible for the court to change the entire legislative policy of the country that was deeply embedded in religious and societal norms. According to the Centre, a union between persons of the opposite sex was socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation. The codified and uncodified personal laws take care of all branches of every religion, and depending upon the personal laws applicable, the nature of marriage as an institution is different. The Centre’s affidavit stated that "amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman”. March 13, 2023: The SC referred the case to a constitutional bench, considering the broader context of the petitions and the inter-relationship between the statutory regime and constitutional rights. The petitioners asserted broader constitutional entitlements arising out of the right to life and personal liberty and the right to dignity, which are embodied in the provisions of the Constitution, including its Preamble, and as a natural incident of Articles 14, 19, and 21. The submissions involved the interplay between constitutional rights on the one hand and specific legislative enactments, including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act[4], and the Transgender Persons Protection of Rights Act[5] 2019. The Supreme Court noted that one of the issues raised before the court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. The top court found it appropriate for the issues raised to be resolved by a bench of five judges given the provisions of Article 145(3) of the Constitution. April 1, 2023: The Jamiat Ulama-I-Hind (JUIH) opposed the pleas seeking legal recognition of same-sex marriages, claiming that Islam’s position on the prohibition of homosexuality is undisputed and established. The JUIH plea said, “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. The position of Islam concerning the prohibition on homosexuality is undisputed and established.” April 6: The Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application, supporting same-sex marriages and the right of same-sex couples to adopt. Case came before the Constitution Bench: April 15, 2023: The Supreme Court notified the composition of the five-judge bench that will hear the batch of petitions seeking legal recognition for same-sex marriage. The five-judge Constitution Bench comprises Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. April 17, 2023: The Centre filed a new application, this time questioning the maintainability of the batch of pleas. The Solicitor General mentioned the application and the CJI directed the same to be listed with the main case. The Centre in its application said same-sex marriages cannot be recognised through judicial adjudication and it is in the exclusive domain of the legislature. The Centre stated that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance", and that the popular will of the people is that marriage be recognised solely amongst heterosexual individuals. The NCPCR also raised a plea stating that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity. The NCPCR further stated that exposure of these children would be limited and their overall personality development would be affected. However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners and said adoption and succession rights must be conferred on same-sex couples. The Bar Council of India (BCI) also recently held a joint meeting with all the State Bar Councils in the country and passed a resolution requesting the Court to leave the same-sex marriage issue for legislative consideration. The BCI's statement was later condemned by the Supreme Court Bar Association (SCBA) stating that the apex court must hear the petition and decide whether it should be adjudicated by the Court or be left to the wisdom of the parliament. After 7 days of hearing the SC on 27 April 2023, they had asked the Centre to come back with its response on the social benefits that same-sex couples can be granted even without legal recognition of their marital status. The court posed the question after observing that the Centre's acceptance of the right to cohabitate with same-sex partners as a fundamental right cast a “corresponding duty" on it to recognise its social consequences. On the 8th day of the hearing, 3 May 2023, the Centre proposed forming a multi-ministry Committee under the Cabinet Secretary to address concerns of the LGBTQ+ community and suggestions given by the petitioners. Solicitor General Tusshar Mehta stated to the Supreme Court that the Committee would have representation from across ministries and it would be headed by the Cabinet Secretary. The next hearing will be held on 9 May 2023. On the 9th day of the hearing, Appearing for the child rights body NCPCR, among others, ASG Aishwarya Bhati submitted that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. According to her “entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,” Meanwhile, the Centre informed the SC that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh, and Manipur — sought more time. Additionally, petitioners’ advocate Mukul Rohatgi suggested that without an interpretation of the Special Marriage Act in favour of LGBTQIA+ persons, the court could register marriages under the Registration Act, of 1908. On the final day of arguments, the defendants’ Senior Advocate AM Singhvi told the Bench that a civil union, as permitted in some countries, is not a solution to what same-sex couples are asking for, as civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage. This exclusion sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages. The Supreme Court on 11 May 2023 reserved its verdict on the batch of petitions seeking legal recognition of same-sex marriages after a hearing that lasted 10 days. The bench, however, did not indicate any tentative time frame for delivering its verdict as the Supreme Court will remain shut for the summer vacation till June 30, 2023, starting May 22, 2023. The judgment is expected only after this break. This debate is being keenly watched in a country that is home to tens of millions of LGBTQ+ people. Over the years, acceptance of homosexuality has also grown in India, especially since the September 2018 ground-breaking ruling that legalised consenting same-sex relationships. But attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family, and attacks on same-sex couples routinely make headlines. https://indiankanoon.org/doc/4234/ https://ncwapps.nic.in/acts/TheForeignMarriageAct1969.pdf https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

Sumasri

May 05, 2023

Case Law - Maneka Gandhi v. Union of India

Judgement - Maneka Gandhi v. Union of India Citation - AIR 1978 SC 597 Introduction 'Personal Liberty' means freedom from physical restraint and coercion which is not authorised by law. Prior to this case decision, Article 21[1] guaranteed the Right to Life and Personal Liberty only against the arbitrary action of the executive and not the legislative action. This case just turned up pages and extended the protection against legislative actions. This case is regarded as one of the best judgements delivered by the apex court as it was instrumental in restoring people's faith in the judiciary and constitutional values. It was in this case that the "Golden triangle" rule was firmly established by the SC and the court firmly cemented its seat as the watchdog of democracy. This decision, which was delivered by a 7-judge bench of the Hon'ble Supreme Court on 25th January 1978, marked the development of a new era with respect to the interpretation of fundamental rights guaranteed in the Constitution. Facts of the case The petitioner Maneka Gandhi's passport was issued on 1st June 1976 as per the Passport Act of 1967[2]. On 2nd July 1977, the Regional Passport Office (New Delhi) ordered her to surrender her passport. The petitioner was also not given any reason for this arbitrary and unilateral decision of the External Affairs Ministry, citing public interest. The petitioner approached the Supreme Court by invoking its writ jurisdiction and contending that the State's act of impounding her passport was a direct assault on her Right to Personal Liberty as guaranteed by Article 21. It is pertinent to mention that the Supreme Court in Satwant Singh Sawhney v. Ramarathnam[3] held that the right to travel abroad is well within the ambit of Article 21, although the extent to which the Passport Act diluted this particular right was unclear. The authorities, however, answered that the reasons are not to be specified in the "interest of the general public". In response, the petitioner filed a writ petition under Art 32 for violation of fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution alleging that Section 10(3)(c) of the Act was ultra vires the constitution. Issues of the case Are the provisions under Articles 21, 14, and 19 connected with each other or are they mutually exclusive? Should the procedure established by law be tested for reasonability which in this case was the procedure laid down by the Passport Act of 1967? Is the right to travel outside the country a part of Article 21 or not? Is a legislative law that snatches away the right to life reasonable? Contentions of the Parties The petitioners stated that the State has infringed upon the Petitioner's fundamental rights of freedom of speech & expression, right to life & personal liberty, right to travel abroad, and the right to freedom of movement. India might not have adopted the American concept of the "due process of law", nevertheless, the procedure established by law should be fair and just, reasonable, and not arbitrary. Section 10(3)(c) of the Passport Act violates Article 21 insofar as it violates the right to life & personal liberty guaranteed by this Article. Audi Altrem Partem i.e. the opportunity of being heard is invariably acknowledged as a vital component of the principles of natural justice. Even if these principles of natural justice are not expressly mentioned in any of the provisions of the Constitution, the idea behind the spirit of Fundamental Rights embodies the very crux of these principles. On the other hand, the respondents stated that the passport was confiscated since the petitioner had to appear before a government committee for a hearing. The respondent asserted that the word 'law' under Article 21 couldn't be understood as reflected in the fundamental rules of natural justice, emphasising the principle laid down in the A K Gopalan case.[4] Article 21 contains the phrase "procedure established by law" & such procedure does not have to pass the test of reasonability and need not necessarily be in consonance with Articles 14 & 19. The marked absence of the due process of law from the provisions of the Indian Constitution clearly indicates the constitution-makers intentions. Judgement The court said that section 10(3)(c) of the Passport Act, 1967 is void because it violates Article 14 of the Indian constitution because it confers vague and undefined power to the passport authority. it is violative of Article 14 of the Constitution since it doesn't provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm the word "procedure" as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter and ruled that the passport would remain with the authorities till they deemed fit. This judgement widened Article 21's scope immensely and it realized the goal of making India a welfare state, as assured in the Preamble. The unanimous judgement was given by a 7-judge bench. Before the enactment of the Passport Act 1967, there was no law regulating the passport whenever any person wanted to leave his native place and settle abroad. Also, the executives were entirely discretionary while issuing the passports in an unguided and unchallenged manner. Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the state finds it necessary to seize the passport or do any such action in the interests of sovereignty and integrity of the nation, its security, its friendly relations with foreign countries, or for the interests of the general public, the authority is required to record in writing the reason of such act and on-demand furnish a copy of that record to the holder of the passport. The fundamental rights conferred in Part III of the Constitution are not distinctive nor mutually exclusive." Any law depriving a person of his personal liberty has to stand the test of one or more of the fundamental rights conferred under Article 19. When referring to Article 14, ex-hypothesi must be tested. The concept of reasonableness must be projected in the procedure. The phrase used in Article 21 is "procedure established by law" instead of due process of law which is said to have procedures that are free from arbitrariness and irrationality. There is a clear infringement of the basic ingredient of principles of natural justice i.e., audi alteram partem and hence, it cannot be condemned as unfair and unjust even when a statute is silent on it. Analysis After this case, the Supreme Court became the watchdog to protect the essence of the Constitution and safeguard the intention of the constitutional assembly that made it. The judges mandated that any law which deprives a person of his personal liberty should stand the test of Articles 21,14 as well as 19 of the Constitution. Also, principles of natural justice are sheltered under Article 21 and therefore no person is deprived of his voice to be heard inside the court. Further to declare any state action or legislation invalid, the "golden triangle". This arbitrary act of impounding the passport eventually led to the pronouncement of a unanimous decision by a seven-judge bench of the apex court comprising M.H. Beg (CJI), Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam This decision rendered void the plain and simple meaning of procedure established by law and introduced for the first time the concept of due process of law into the Indian constitution. The court also accepted that the Right to Travel Abroad is a very important component of the Right to Liberty, if this right is not granted, liberty is distorted. By this judgement, the court increased the scope of Article 21 of the Constitution and made it the duty to interpret Article 21 in a manner that serves the people's interest most. [1] https://indiankanoon.org/doc/1199182/ [2] https://passportindia.gov.in/AppOnlineProject/pdf/PassportActEng.pdf [3] 1967 AIR 1836, 1967 SCR (2) 525 [4]1950 AIR 27, 1950 SCR 88

Sumasri

Apr 24, 2023

Case Law - Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerala and Anr

Judgement - Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerala and Anr Citation - (1973) 4 SCC 225; AIR 1973 SC 1461 Introduction It was during 1950-51, the government of India introduced Articles 31A and 31B through the First Constitutional Amendment, 1950. These two provisions allowed the government to acquire private property for public purposes and art. 31B introduced the 9th schedule- which gives judicial immunity to any laws if brought under its ambit. Laws in that schedule shall not be judicially reviewed. This amendment affected the right to property under the then 19(1) (f) of the Indian Constitution. Many important cases such as Shankari Prasad (1951)[1], Sajjan Singh (1965)[2], and Golaknath case (1967)[3] came up. The important question was identical in all cases, and they had produced contrary judgements till the Golaknath case. These contradictions were resolved through the Kesavananda Bharati case[4], and the basic structure doctrine was introduced in India. It is rightly said that the judgement in the instant case brought an end to the conflict between the executive and the judiciary and proved to be a saviour of the democratic system and set up in the country. The majority judgement in the case was pronounced by Chief Justice S.M.Sikri, Justice Hegde, Justice Mukherjee, Justice Shehlat, Justice Grover, Justice Jaganmohan Reddy, Justice Khanna, and was dissented by Justice Ray, Justice Palekar, Justice Mathew, Justice Beg, Justice Dwivedi and Justice Chandrachud. Facts of the case Kesavananda Bharati was the head of the Edneer Mutt, a monastic religious institution located in the Kasaragod district, of Kerala. Bharati had some land in the Mutt which he owned. The Kerala state government passed the Land Reforms Amendment Act in 1969. As per this Act, the government could acquire some of the lands that belonged to the Mutt. In March 1970, Bharati moved the Supreme Court (under Section 32 of the Constitution[5]) to enforce the rights that were guaranteed to him under: Article 25: Right to Practice & Propagate Religion Article 26: Right to Manage Religious Affairs Article 14: Right to Equality Article 19(1)(f): Freedom to Acquire Property Article 31: Compulsory Acquisition of Property The Kerala state government enacted another law, the Kerala Land Reforms (Amendment) Act, 1971 even as the petition was under the court’s consideration. The contentions made by the petitioners brought to the fore the validity of various amendments that were brought in by the Parliament to nullify the effects of Golaknath v State of Punjab. The petitioners challenged, in particular, three constitutional amendments – the 24th Amendment, the 25th Amendment, and the 29th Amendment and their validity. Issues of the case Whether the 24th Constitutional (Amendment) Act, of 1971 and the 25th Constitutional (Amendment) Act, of 1972 are constitutionally valid? The extent to which the Parliament can exercise its power to amend the Constitution. Whether the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, or abrogate any part of the Constitution even to the extent of taking away all fundamental rights? Contentions by both parties Mr Palkhivala, Learned counsel for the petitioner side relied on the decision held in the Golaknath case of 1967. He also contended that any damage to fundamental rights should not be impermissible. He noted that parliament should not damage the fundamental rights of the citizens through the amending power it carries under Article 368[6] of the Indian Constitution. He regarded these fundamental rights as one of the basic ingredients or principles of the Indian Constitution. Lastly, he argued that the amending power is limited under Article 368 as per the preamble and the scheme of the constitution. The Parliament cannot amend the Constitution to change its basic structure as was set forth by Justice Mudholkar in the Sajjan Singh v State of Rajasthan case. They argued that the 24th & 25th Constitutional Amendments were violative of the Fundamental Rights provided in Article 19(1)(f). On the other hand, Mr Seervai appearing for the respondent state and Union of India, argued that taking away the rights shall be permissible after the 24th amendment to the Indian Constitution. It was also argued that amending powers of the parliament has no limitations and shall be limited on the ground of repugnancy, inalienable rights, and preamble. The respondents stressed that to fulfil its socio-economic obligations the unlimited power of the Parliament to amend the Constitution must be upheld. Judgement Two main elements are to be understood from the historic verdict of the case. One is concerning the limitations on the amending powers of the parliament. Secondly, concerning the introduction of the Doctrine of the Basic Structure of the Indian Constitution. Firstly, the Supreme Court bench upheld the 24th Constitutional Amendment and noted that Parliament should have the power to amend any part of the Constitution, which will also include fundamental rights under Part 3 of the Constitution. This is something that was implied in the Indian Constitution itself. It also upheld the decisions held in the cases of Shankari Prasad and Sajjan Singh on whether the amendment is a law and stated that Constituent power is completely different from that of ordinary legislative powers. Second and most importantly, it held that the power of the Parliament under Article 368 to amend the Constitution is limited in scope. It noted that there are no implied limitations on the powers of the amendment, and the rights which are enforceable under the Constitution shall remain as a basic part of the Constitution. The court observed and held that basic structure elements are envisaged in the preamble and also in various provisions. It noted that the Indian Constitution is built on various properties, and if we remove them, such a constitution shall collapse. A few such include sovereign, democratic, republic, justice social, economic, political, equality, liberty of thought, etc. Thus, if we withdraw these elements, the identity of the Constitution shall not survive and shall result in vagueness and improperness in the system. Thus, this is the basic structure of the Indian constitution. Analysis The case of Kesavananda Bharati vs the State of Kerala as mentioned supra had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The majority of the bench (7:6) wished to safeguard the Constitution by preserving its basic features. The judgment was based on sound reasoning and it was given after a careful analysis of multifarious aspects. The bench opined that if the Parliament were to get unfettered power to amend, there were chances of that power being misused, and that governments would change it as per their preferences and whims. Such limitless powers vested in the hands of the government would mean that the basic features and also the very essence and spirit of the Indian Constitution could be changed. There was a need for a doctrine that could protect the rights of both the Indian Parliament and Indian citizens; the bench met this need halfway and came up with the basic structure doctrine, that protects the rights of both camps. It is to be noted that while in the US, only 27 amendments have been made, India has seen over one hundred amendments since independence. Despite this big number, the spirit of the Constitution and also the ideas of the Constitution-makers have not been tampered with. It is because of the bench’s decision that the identity and spirit of the Constitution have not been lost. This landmark case has given our Constitution stability. Even though the petitioner lost this case partially, the SC ruling in the Kesavananda Bharati case turned out to be a saviour for Indian democracy and also prevented the Constitution from losing its spirit. [1]https://articles.manupatra.com/article-details/A-Case-Analysis-Shankari-Prasad-v-Union-of-India-Supreme-Court [2] https://indiankanoon.org/doc/1308308/ [3] https://indiankanoon.org/doc/120358/ [4] https://indiankanoon.org/doc/257876/ [5] https://indiankanoon.org/doc/981147/ [6] https://indiankanoon.org/doc/594125/

Sumasri

Mar 10, 2023

Euthanasia Laws in India and Other Nations

Introduction The right to life is one of the fundamental rights guaranteed by the Indian Constitution, without which no other rights can be enjoyed. The phrase "right to life" refers to a person's basic right to live. However, the million-dollar question is that if a person has the Right to Life, does he also have the right not to Live, i.e. the Right to Die? The right to life, which includes the right to live in dignity, implies that certain rights are protected until the end of an average lifespan. This may concern a dying man's right to die with dignity. However, the right to die with "dignity" should not be confused with the right to die in an unnatural way that reduces one's lifespan. As a result, the issue has sparked strong debates in India regarding whether passive euthanasia should be legalised. It basically comes down to choosing between empathy and humanity. The very concept of euthanasia is based on the idea that a man should be able to live his life on his terms. Euthanasia is typically associated with those who have terminal diseases or are on the verge of being handicapped and have no desire to live the rest of their lives. A highly disabled or near-death individual should have the option to live or die. The goal is that the person dies with dignity, putting an end to their prolonged pain and unbearable trauma. It is in the patient's best interest to be free of constant pain and suffering. Euthanasia has been a contentious issue all across the world. The debate has grown increasingly heated in light of ongoing developments in numerous nations where euthanasia is legal, for example, India, Canada, and England, among others. Recently, our Supreme Court passed a landmark decision legalising passive euthanasia, in which life support systems can be discontinued the consent of the individual and family members. The honourable court also established the concept of living will ensure that no one takes unfair advantage of it. Meaning of Euthanasia Euthanasia is derived from two Ancient Greek words: 'Eu' means 'good' and 'Thanatos' means 'death,' therefore Euthanasia means 'good death.' It is the act or practise of ending the life of a person suffering from a terminal sickness or an incurable condition through injection or by ceasing extraordinary medical care in order to relieve him of intolerable pain or terminal illness. Euthanasia is defined as the purposeful killing of a person whose life is deemed unworthy of life. For a long time, euthanasia has been a contentious issue in the health sector, with many referring to it as "suicide" if done by the patient or "murder" if done by others. It has been a source of contention for many years throughout the world, with some countries, such as the United Kingdom, still considering it illegal, while others, such as the Netherlands, Canada, Colombia, and three federal states in the United States, consider it legal. In 2018, the Supreme Court of India declared passive euthanasia legal by issuing rules. To summarise, Euthanasia or mercy killing is the provision of a less painful death to a person who has been suffering for an extended period of time. Types of Euthanasia Active Euthanasia This is a form of euthanasia in which a doctor can end a person's life immediately. It includes the use of extremely lethal drug doses that are injected directly into the patient's blood or in such a way that the patient dies instantaneously. People who suffer from incurable pain and desire to end their life to end their agonising suffering choose euthanasia. This sort of euthanasia is frequently voluntary, but it can also be non-voluntary if a person is unable to give such consent. Active euthanasia is also known as 'Positive Euthanasia' and 'Aggressive Euthanasia.' Passive Euthanasia This type of euthanasia is a practice of intentionally causing a person's death by withholding necessary and basic commodities such as food, drink, and drugs from the patient in order to provide death to such a person who is in excruciating pain and is unable to recover from any disease or injury. Simply put, this involves withdrawing life support and allowing the patient to die naturally. In comparison to active euthanasia, it is a slower method of death. Negative euthanasia is also referred to as 'Negative Euthanasia' and 'Non-Aggressive Euthanasia.' Voluntary Euthanasia Voluntary Euthanasia occurs when a person offers conscious agreement to end his or her own life. The most important aspect of this is that it be agreed to with full assent and comprehension. Non-voluntary Euthanasia Non-voluntary Euthanasia occurs when an individual is unable to offer consent due to his unconsciousness and a choice to end that person's life is made by someone else, such as a family member or his life partner. Difference between Suicide and Euthanasia Suicide and euthanasia are conceptually distinct and cannot be linked. Suicide is committed for a variety of reasons, including sadness, a broken relationship, a lack of success, or financial problems. Whereas euthanasia is a separate concept in which another person takes steps to end someone's personal life in order to relieve him of any incurable agony or suffering, which must be a bona fide act, i.e. done in good faith. When a person commits suicide, there is no criminal violation; however, if the person fails in such an attempt, there is a criminal offence, as stated in section 309 of the IPC, 1860, which has a maximum penalty of imprisonment for up to one year. In the case of euthanasia, only passive euthanasia is permitted in India; active euthanasia is still illegal. Global Position Australia The Northern Territory of Australia became the first country to allow euthanasia with the passage of the Rights of the Terminally Ill Act in 1996. The Supreme Court of Northern Territory of Australia ruled in Wake v. Northern Territory of Australia that it was legal. The Euthanasia Laws Act of 1997 made it lawful. Although assisting euthanasia is criminal in most Australian states, the prosecution has been rare. In Tasmania in 2005, a nurse was convicted of helping in the death of her mother and father, both of whom had incurable illnesses. She was sentenced to two and a half years in prison, but the court eventually delayed the verdict because he believed the community did not want the woman imprisoned. Albania In 1999, Albania legalised euthanasia, stating that any type of voluntary euthanasia was lawful under the Terminally Ill Act of 1995. If three or more family members consent to the decisions, passive euthanasia is legal. Belgium Euthanasia became legal in 2002. In September 2002, the Belgian Parliament passed the 'Belgium Act on Euthanasia,' which defines euthanasia as "the intentional termination of life by someone other than the person concerned at the latter's request." The patient must be major, have made the request willingly, thoroughly considered, and repeated, and he/she must be in a situation of consent and unbearable bodily or mental pain that can be alleviated, according to the requirements for permitting euthanasia. All of these acts must be addressed to the authorities before being permitted in order to meet essential standards. Canada Patients in Canada have the right to decline life-sustaining therapies but not to request euthanasia or assisted suicide. In Rodriguez vs. Attorney General for British Columbia, the Supreme Court of Canada stated that in the situation of assisted suicide, the interests of the state will take precedence over the interests of the person. USA There is a difference between passive and active euthanasia. While active euthanasia is prohibited, physicians are not held accountable if they refuse or remove life-sustaining care at the patient's request or the request of the patient's authorised agent. In the cases of Washington v. Glucksberg and Vacco v. Quill, the United States Supreme Court declared euthanasia to be completely unconstitutional. Only in Oregon, an American state, was physician-assisted suicide permitted in 1994 under the Death and Dignity Act. California State legislative committee adopted a bill in April 2005, making it the second state to legalise assisted suicide. Position of Euthanasia in India The legal status of India cannot and should not be analysed in isolation. India drew its constitution on the constitutions of many countries, and the courts have frequently referenced to numerous international judgements. Euthanasia is absolutely prohibited in India. Because there is an intent on the part of the doctor to murder the patient in cases of euthanasia or mercy killing, such cases would definitely fall under clause first of Section 300 of the Indian Penal Code, 1860. However, because there is legal permission of the deceased in such circumstances, Exception 5 to the abovementioned Section would be invoked, and the doctor or mercy murderer would be punished under Section 304 for culpable homicide not amounting to murder. Yet, only cases of voluntary euthanasia would qualify for Exception 5 under Section 300. Non-voluntary and involuntary euthanasia would be prohibited by proviso one to Section 92 of the IPC, making it illegal. Furthermore, The right to life is a fundamental right guaranteed by the Indian Constitution. Article 21 of the Indian Constitution ensures the right to life. It is contended that the right to life guaranteed by Article 21 includes the right to die. As a result, mercy killing is a legal right. The Supreme Court ruled in Gyan Kaur vs. the State of Punjab (1996) that euthanasia and assisted suicide are illegal in India. The court ruled that Article 21 of the Indian Constitution does not include the right to die. In Aruna Ramchandra Shanbaug vs Union of India (2011), the Supreme Court ruled that in extreme circumstances and under tight supervision, passive euthanasia could be permitted. In 2014, a three-judge bench of India's Supreme Court declared the ruling in the Aruna Shanbaug case to be inconsistent in and of itself and submitted the subject of euthanasia to the court's five-judge Constitution bench. In the case of Common Cause vs Union Of India (2018), a Constitution bench led by India's Chief Justice Dipak Mishra ruled that the fundamental right to life and dignity includes the right to refuse treatment and die with dignity. It was decided that the Fundamental Right to a Meaningful Existence includes the right to die without pain. Conclusion Euthanasia is a terrible and immoral act that is carried out in a legitimate manner. The purpose of the concept is not to take a person's life, but to relieve the individual who is in agonising pain through death. The most serious disadvantage of using euthanasia is its abuse. Euthanasia can be utilised for bad objectives and to obtain illegal benefits from the deceased, as well as against the deceased's will. In some parts of India, the rule of law is still not followed, and corruption, coercion, and undue influence will operate as hurdles to the practice of euthanasia, resulting in more murders in the name of euthanasia rather than genuine euthanasia. Therefore, both views are correct but there should be a creation of middle way which should develop euthanasia and should be adopted by more countries.

Sumasri

Nov 03, 2022

How Do Elections Take Place In India At National And State Level

Elections play a significant role in any democratic setup. India, being the world’s largest democracy is one of the hotspots of the election process around the globe. In India, elections are held at three levels i.e. Centre elections, State elections and Municipal/Panchayat Elections. To put it simply, the election can be termed as the process of voting to choose someone as your representative at any level of government wherein the right to vote is a statutory right which can influence the decisions about how the country is governed. The Election is one of the significant components of democracy as it allows choosing leadership, and political participation which in turn facilitates a voter to raise his/her voice and resentment against a ruling party. It is also a self-corrective system as, after every five years, the ruling parties are kept in check and made to consider the demands of the public. The Constitution of India elaborates on the electoral system of India in Part XV of the constitution i.e. Article 324-329. Article 324 of the constitution entrusts the election commission to ensure free and fair elections in the country which is the sacrosanct spirit of the election in the country. Apart from the Constitution of India, Role Of The Election Commission Of India The Election Commission of India is the sole autonomous constitutional body that independently organises and regulates elections in India. Originally the commission had only one Election Commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body. The commission consists of one Chief Election Commissioner and two Election Commissioners. The Election Commission of India executes several key functions. Its superintendents direct and control the entire process of conducting elections to the Parliament and Legislature of every State and to the offices of the President and Vice-President of India. The most important function of the commission is to decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections. It prepares electoral rolls and issues Electronic Photo Identity Cards (EPIC). It decides on the location-polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters. It grants recognition to political parties & allots election symbols to them along with settling disputes related to it. Electoral Offences Under Indian Penal Code, 1860 – IPC has defined bribery under corrupt practices and it states that bribery is considered to be committed by the person who gives gratification to some other person in form of food, clothes, drink or any other form. The person accepting such gratification is equally responsible for bribery and shall be liable for punishment up to 1-year imprisonment or fine or both as per Section 171E. The person who interferes directly or indirectly with the free exercise of any of the electoral rights shall also be penalised with 1-year imprisonment or fine as per section 171F of IPC. Further, if the person impersonates another person and votes on behalf of someone else shall also be punished with the same punishment. If a person has incurred some expenses or authorised some expenses without the knowledge of the candidate or holding any meeting or in another way for promotion of such candidate, then such person shall be liable for a fine of Rs 500 under Section 171H of IPC. Even if a lawyer fails to keep the accounts of the election, he shall be liable for a fine of Rs 500 too under Section 171I of IPC. Furthermore, there are around 22 offences mentioned under the Representation of People’s Act 1951 which include among others, filing of false affidavit, convening, attending Public Meetings or causing commotion during the concluding hour, promoting enmity between classes of citizens, maintaining Secrecy of Voting and not persuading voters, prohibition of canvassing, etc. Types of Elections There are different types of elections conducted at the national, state and Municipal/Panchayat level like the election of President, Vice-President, Loksabha, Rajyasabha, Legislative Assembly, Legislative Council, Municipality, Panchayat, etc. This article shall talk about the following types of elections in detail:- President Lok Sabha Rajya Sabha Legislative Assembly Municipality Panchayat National Level Elections Presidential Election - The President is considered to be the first citizen of India and is the symbol of solidarity, unity and integrity of the nation. Article 52 of the Constitution describes the President of the country. Further, Article 54 mentions that there shall be an election for the President of India. Manner of Election The President of India is elected through a single-transferable voting system wherein the voters of the same is an electoral college comprising of the elected representatives of the Parliament and Legislative Assemblies of the States and Union Territories of Delhi, Jammu & Kashmir and Puducherry (since 1992 through Constitutional Amendment Act). However, no nominated members of the houses of Parliament are allowed to vote in the presidential election. In addition to that, Article 55 of the Constitution describes the manner of the election of the president i.e. president is elected indirectly by an electoral college, the election is done by a secret ballot, and it is held in accordance with the system of proportional representation using a single transferable vote. Qualifications to become the President of India There are certain qualifications prescribed in Article 58 of the constitution to contest the election of President i.e. He/She must be an Indian citizen, A person must have completed the age of 35, A person must be qualified for election as a member of the House of the People and must not hold a government (central or state) office of profit. However, a person is eligible for election as President if he/she is holding the office of President, Vice-President, Governor or the office of Union/State Minister. Value Of The Vote Of MP And MLA In Presidential Election As the election of the President is conducted through an Electoral College consisting of the Members of Legislative Assemblies and Members of Parliament, there are certain values assigned for the vote of an MLA and MP to keep them as a whole on an equal pedestal. The value of the vote of an MLA and MP is calculated as follows:- The value of the vote of an MLA is equal to:- Total population of State/Total number of elected members in the state legislative assembly * 1/1000 The value of the vote of an MP is equal to- The total value of votes of all MLAs of all states/ Total number of elected members of Parliament Lok Sabha Elections - In India, there are two houses in the parliament namely Lok Sabha and Rajya Sabha wherein the former is the lower house and the latter is the upper house. The election of the Lok Sabha is conducted based on an adult franchise. Every person who is a citizen of India and is 18 years of age is entitled to vote at the election provided the person is not disqualified under the provisions of the law of land or any statute on the ground of the unsound mind, crime or corrupt legal practice, non-residence, etc. Composition of Lok Sabha Lok Sabha is a body of elected representatives who are chosen through direct election based on adult suffrage. The Lok Sabha is sanctioned by the constitution to have a maximum strength of 552 which includes 530 members from the states and up to 20 members from the Union Territories. Previously, the President could nominate two members from the Anglo-Indian community in Lok Sabha. However, this practice was discontinued in the year of January 2020 through the 126th Constitutional Amendment Bill of 2019 when enacted as the 104th Constitutional Amendment Act of 2019. Manner of election of LokSabha Members Direct Election- Every citizen of the country who has attained 18 years of age and is not disqualified by law is eligible to vote in the Lok Sabha election irrespective of his/her social status, religion, caste, race, etc. Territorial Constituency- The Lok Sabha election is conducted after dividing the territory of the country into different territorial constituencies for smooth conduction of the election which means that the number of seats for the election is equal to the number of constituencies. Qualification To Contest For The Lok Sabha Election Article 84 of the constitution prescribes that a person shall only be qualified to contest the Lok Sabha Election if he is a citizen of India and makes and subscribe before some person authorised on that behalf by the Election commission an oath or affirmation according to the form set out in the third schedule, have attained the age of 25 years and possesses such other qualification as may be prescribed in that behalf by or under any law made by Parliament. Lok Sabha Elections - Rajya Sabha is the Upper house of Parliament which has been sanctioned by the constitution as per Article 80 of the constitution. The maximum strength of the Rajya Sabha can be 250 members, out of which 238 members are elected from the States and Union Territories and 12 members are nominated by the President having special knowledge namely, Literature, science, art and social service. Rajya Sabha is a permanent body. One-third of its members retire after every two years. Manner Of Election Of Rajya Sabha The members of the Rajya Sabha are not elected by the people directly. Their election is conducted taking into account the members of legislative assemblies of the states as their voters by the system of proportional representation using the single transferable vote. In the election process, every state is allotted a certain number of seats in the Rajya Sabha while the representative of Union Territories is chosen as prescribed in the law enacted by Parliament. Qualification To Contest Election For Rajya Sabha: Article 84 of the constitution prescribes certain qualifications to contest the election of Rajya Sabha i.e. citizen of India, before the person authorised by the election commission an oath according to the Third Schedule of the constitution, member for a seat in Rajya Sabha should not be less than thirty years of age and He/she should possess such other qualifications as Parliament may prescribe by law. State Level Elections Legislative Assembly Elections - The Election of the Legislative Assembly is conducted at the State level but it is managed only by the Election Commission of India. Article 170 of the Constitution prescribes that the maximum strength of the legislative assembly shall be 500 and the minimum strength shall be 60. Manner of the election of Legislative Assembly Direct Election: There is a direct election based on adult suffrage and whosoever has attained the age of 18 years can vote for the election of the legislative assembly. Nomination of Anglo-Indian Community member: One member from Anglo-Indian Community can be nominated by the governor if the governor feels like it is not adequately represented in the House. Territorial Constituencies: Each state is divided into different territorial constituencies for election and one member is elected from each constituency. Qualification to contest election for Legislative Assembly There are certain qualifications mentioned in Article 173 of the constitution to fulfil to contest the election of the Legislative assembly i.e. if he is a citizen of India and makes and subscribed before some person authorised on that behalf by the Election commission an oath or affirmation according to the form set out in the third schedule, have attained the age of 25 years and possesses such other qualification as may be prescribed in that behalf by or under any law made by Parliament. Municipal Corporation Elections - Municipal Corporation is considered to be the institution of self-government after the enactment of the 74th Constitutional Amendment Act in the Constitution of India. The municipal corporation elections are conducted to elect Municipal Councillors and ward representatives for Municipal Corporations. Manner of the Election The election of Municipal Corporation is conducted under the supervision of the State Election Commission wherein the state election commission is an independent body and comprises individual members who served as bureaucrats at the national and state level with huge reputations, integrity and values. Qualification for contesting Municipal Corporation Elections There is a certain qualification which needs to be fulfilled to contest Municipal corporation Elections i.e. He/She must be a citizen of India, must have attained the age of 21 years, and must not have been disqualified under any law for contesting the municipal election, must have registered in ward electoral roll and must have not been employed by any municipal corporation in India. Panchayati Raj Elections - Panchayati Raj is the oldest system of local government wherein Panchayat means an assembly of five and raj means the rule. However, it was officially established by the Indian constitution through 73rd Amendment Act, 1992. The Panchayati Raj Elections are also conducted under the supervision of the State Election Commission. The structure of Panchayati Raj consists of three levels: Gram Panchayat Block Panchayat or Panchayat Samiti Zilla Panchayat Contrary to what is often believed, the Panchayati Raj system is also acknowledged as a sort of direct democracy (i.e., they wield full functions of a government at the village level). Election Procedure Of Panchayati Raj System The election of the Panchayati Raj system comprises the voters who are listed on the electoral records and are residents of a village while there is a reservation of Scheduled Castes and Scheduled Tribes have designated them at all levels in proportion to their numbers and one-third of the seats are reserved for women. According to Article 243 D of the constitution, this policy also applies to all levels of the chairperson's office. Rotational distribution of the reserved seats among the Panchayat's several constituencies is an option. There is a standard policy with five-year terms for each term. Before the term ends, new elections must be held. In the case of dissolution, elections must be held compulsorily within six months, according to Article 243 E of the constitution. Qualification To Contest For The Panchayat Elections A person shall be qualified to contest election for Panchayat Elections if he/she makes and subscribes before the returning officer or any other person authorised by the State Election Commission an oath or affirmation according to the form set out for the purpose in the first schedule, his/her name appears in the electoral roll of any constituency in the Panchayat, he/she has completed his 25 years of age and he/she has not been disqualified under any other provisions of this Act.

Sumasri

Sep 23, 2022

Directive Principles of State Policy

The Directive Principles of State Policy were incorporated in Part IV of the Constitution to establish the values of social and economic democracy as laid down in the Preamble of the Constitution. To suit the political climate and specific demographic needs of the country, the makers of our Constitution borrowed concepts from different constitutions of the world. In furtherance of the same approach, the DPSPs have also been taken from the Irish Constitution in 1937. It became a dream of the newly independent nation to take into account the diverse challenges ranging from social to economic inequalities in a diverse nation like India and Dr B.R. Ambedkar viewed these principles as 'novel features of the Constitution of India. The DPSPs & Fundamental Rights originated from the same report i.e. the Nehru Report of 1948.[1] The Nehru Report of 1948 incorporated the fundamental rights and other rights such as the Right to Education which were not enforceable at that time in the Swaraj Constitution of India. The Directive Principles were incorporated in accordance with the premise that all rights have corresponding duties. The Principles, although non-enforceable, set several long-term goals for the government to achieve through its policies keeping in mind the greater interest of the common man. Types of DPSP There is no rigid classification of DPSP in the Indian Constitution. However, DPSPs can be classified into the below-mentioned categories according to their nature:- Socialistic Principles (Article 38- 47) Gandhian Principles (Article 40-48) Liberal-Intellectual Principles (Article 44-51) Socialistic Principles Article 38 aims to promote the welfare of the people by promoting a social order through social, economic, and political justice, Article 39 aims to provide all citizens with an adequate means of livelihood, and Article 39 A aims to promote equal justice and provide free legal aid to the poor. Article 41: To ensure the right to work, education, and public aid in the event of unemployment, old age, sickness, or disability. Article 42: To provide for reasonable and humane working conditions and maternity leave. Article 43: To ensure an acceptable living level, a living wage, and social security. In rural areas, the state will foster cottage enterprises on an individual or cooperative basis. Article 43 A: To take initiatives to ensure workers' participation in industrial management. Article 47: Improve public health by improving people's diet and standard of living. Principles of Gandhi These concepts were based on Gandhi's reconstruction agenda during the national movement. Some of Gandhi's ideas were included in DPSPs to help realise his dreams, and they direct the state through the following articles: 1. Article 40: To establish village panchayats and provide them with the necessary authorities and authority to function as self-governing bodies 2. Article 43: To encourage cottage enterprises on a personal level. 3. Article 43 B: To promote cooperative societies' voluntary formation, autonomous functioning, democratic control, and professional administration. 4. Article 46: To promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other socially vulnerable groups, as well as to safeguard them from social injustice and exploitation. 5. Article 47: To make it illegal to consume intoxicating beverages and medicines that are harmful to one's health. 6. Article 48: To prohibit the killing of cows, calves, and other milch and draught cattle, as well as to enhance the breeds of these animals Liberal-Intellectual Principles These principles lean toward the ideology of liberalism and ensure a decent standard of life for all citizens and the preservation of society in general- 1. Article 44: To ensure a consistent civil code throughout the country for all citizens. 2. Article 45: Ensure that all children receive early childhood care and education until they reach the age of six. 3. Article 48: To modernize and scientifically organize agriculture and animal husbandry. 4. Article 48 A: To safeguard woods and wildlife, as well as to protect and improve the environment. 5. Article 49: To safeguard monuments, sites, and objects of aesthetic or historic significance designated as national treasures. 6. Article 50: To separate the judiciary from the executive branch of government in the public sector. 7. Article 51: To promote international peace and security and to maintain just and honourable relations among nations; to promote respect for international law and treaty commitments; and to support the arbitration of international disputes. Enforceability of DPSP Though DPSP was incorporated in the constitution, it was not made enforceable by the Constituent Assembly in any court of law, even though this does not mean that the principles are of any less importance. The above-mentioned point has remained a point of discussion among constitutional experts. Those who opine in favour of the enforceability of DPSP argue that enforceability of DPSPs create an added pressure on the government to carry out its responsibilities in a comprehensive and time-bound manner. For example, implementing Article 44 of the Constitution which envisages the Uniform Civil Code which aims for uniform provisions of civil law for all citizens of the country irrespective of their caste, creed, religion or beliefs, is the need of the hour.[2] On the other hand, those who do not support enforcement of DPSPs, argue that these principles do not need enforcement in the Constitution as there already exist a plethora of laws which indirectly implement the provisions mentioned in the principles. E.g. Article 40[3] of The Constitution which deals with the Panchayati Raj system was introduced through the 74th Constitutional Amendment. It is evident that the currently prevailing system of local self-government in the country is efficient and stable. Another subsequent argument against the enforcement of DPSP is that it imposes moral policing on the citizens of the country. Statutes vis-a-vis DPSP From 1950 onwards, a number of statutes and policies were enacted to give effect to the Directive Principles. These are the following statutes which tried to incorporate some or other directive principles of State policy. The Minimum Wages Act (1948) Child Labour Prohibition and Regulation Act (1986) The Maternity Benefit Act (1961) Equal Remuneration Act (1976) For the growth of cottage industries in the country, boards such as the Handloom Board, Handicrafts Board, Coir Board, Silk Board, and others have been established. Integrated Rural Development Programme (1978) Jawahar Rozgar Yojana (1989) Swarnajayanti Gram Swarozgar Yojana (1999) Sampoorna Gram Rozgar Yojana (2001) Mahatma Gandhi National Rural Employment Guarantee Programmes (2006) The National Forest Policy (1988) The Prevention of Atrocities Act protects the rights of SCs and STs. Several Land Reform Acts. Difference Between Fundamental Rights And Directive Principles Of State Policy As aforementioned, there are certain core points of comparison between the Fundamental Rights and Directive Principles of State Policy: The Fundamental Rights are rights available to the citizens of India, so in that sense, they represent an individualistic approach. They are the basic rights of every individual citizen in the country and they can be enforced against another individual or the State if violated. The Directive Principles represent a more social approach intended for the welfare of the whole population of the country instead of individuals. The scope of Fundamental Rights is essentially limited, because granting limitless rights to the citizens may result in anarchy. They are to be read strictly. However, the scope of Directive Principles is limitless. They can be read and interpreted extensively and can give birth to more principles. If any law is violative of the Fundamental Rights, a court can declare that law as being unconstitutional and invalid. But the courts do not have the power to declare any law violative of a Directive Principle to be unconstitutional or invalid. However, a law can be upheld by a court if it gives effect to a Directive Principle. Fundamental Rights can be suspended during a period of emergency, except the Fundamental Right to Life and Personal Liberty, which cannot be suspended even in an emergency. Directive Principles can never be suspended or restricted, under any circumstance. Challenges faced by Directive Principles of State Policy From a prima facie analysis, the importance of DPSP often gets undermined because they do not carry any weight or consequence in a court of law. In fact, it is often argued that DPSP is a mere declaration and that the prerogative of securing the principles completely lies with the state. Also, there is no limit or extent put on these principles. Many critics believe that the Preamble should include all of the aims listed in the DPSP, and that their description in Part IV has made matters even more convoluted. Directive principles just give the idea that the State is using legitimate power, with the goal of gaining support through promises rather than inaction. DPSP vis-a-vis Judicial Pronouncements The debate over whether Fundamental Rights come before DPSPs or whether the latter takes a higher position than the former has given rise to several debates over the years. The following are some major judicial pronouncements that have attempted to solve this question: The Kerala Education Bill, ... vs Unknown 1959 1 SCR 995[4] The court stated that if a dispute emerges between Fundamental Rights and DPSPs, the harmony between the two should not be disrupted; nevertheless, if the disagreement persists after applying the theories of interpretation, the former should be upheld and given priority over the latter, i.e. DPSP. I. C. Golaknath & Ors vs State Of Punjab & Anrs 1967 AIR 1643[5] The Court ruled that when making any law or policy for the country, Parliament cannot limit fundamental rights. It further said that if a law is enacted to give effect to Article 39 (b) and (c) of Part IV of the Constitution, and if Article 14, Article 19, or Article 31 are broken in the process, the law cannot be deemed unlawful only because of the violation. Keshavnanda Bharati vs the State of Kerala Writ Petition (Civil) 135 of 1970[6] In the landmark judgment of Kesavananda Bharti vs the State of Kerala, the Supreme Court gave DPSPs precedence over Fundamental Rights. This was mainly because the purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of our society. It aims at making the Indian masses free in a positive sense. Unni Krishnan, J.P. And Ors. Etc. ... vs State Of Andhra Pradesh And Ors 1993 AIR 2178[7] Fundamental Rights and Directive Principles, according to the Court, are complementary rather than exclusive. The Court stated that the Fundamental Rights are the means by which the Part IV goals can be met. Conclusion The importance of DPSPs cannot be discounted simply because they are not enforceable in any court of law. These principles were included to aid in the country's governance and seamless operation. It was added to satisfy a country's primary objectives and the ultimate goal of working for the well-being of its population. It is as if the government has been given a structure to function inside, and it should only work within that structure to protect the welfare of the people. Every policy and law enacted by the government must adhere to the principles outlined in Part IV of the Constitution. [1] https://indiankanoon.org/doc/1933556/ [2] The Constitution of India,1950 art. 44 [3] The Constitution of India, 1950, art. 40 [4]The Kerala Education Bill, ... vs Unknown 1959 1 SCR 995 [5] I. C. Golaknath & Ors vs State Of Punjab & Anrs 1967 AIR 1643 [6] Keshavnanda Bharati vs the State of Kerala Writ Petition (civil) 135 of 1970 [7] Unni Krishnan, J.P. And Ors. Etc. ... vs State Of Andhra Pradesh And Ors. .1993 AIR 2178

Sumasri

Sep 12, 2022

10 Landmark International Constitutional Cases

Constitutional Law is one of the most sought-after subjects in law. While India has a comprehensive constitutional framework (the largest in the world), there are several other Constitutions which are substantive, including that of the United States of America and Canada. In this article, the authors attempt to highlight 10 landmark constitutional cases from a few such jurisdictions. JURISDICTION: UNITED STATES OF AMERICA 1. Marbury Vs. Madison Court: United States Supreme Court Citation: 5 US 137 (1803) Year: 1803 Facts: John Adams lost to Thomas Jefferson in the 1800 presidential elections. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which established new courts, and additional judges, and increased the president's authority over judicial nominations. Adams and his party tried to frustrate his successor by using the Act to appoint 16 new circuit judges and 42 new justices of the peace. The Senate gave its approval to the appointments, but they would not take effect until the Secretary of State gave them their commissions. In the District of Columbia, William Marbury had been named Justice of the Peace; however, his commission had not yet been delivered. Marbury asked the Supreme Court to order James Madison, the newly appointed secretary of state, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions. Issues: Were the plaintiffs entitled to their commissions? Can they file a legal claim for their commissions? Does the Supreme Court have the power to mandate that their commissions be delivered? Judgement: The Court determined that Madison's refusal to provide the commission was illegal, but it did not issue a writ of mandamus requiring Madison to produce Marbury's commission. Instead, the Court ruled that the Judiciary Act of 1789 provision that allowed Marbury to file his case with the Supreme Court was inherently unconstitutional because it attempted to go beyond what Article III, Section 2 had established as the Court's original authority. Marshall clarified that the right approach to seeking redress was through a writ of mandamus, but concluded that the Court could not issue one. According to Marshall, the Judiciary Act of 1789 was unconstitutional. Due to the Supremacy Clause, which puts the Constitution ahead of all other laws, Congress lacked the authority to alter the Constitution through regular legislation. Marshall went on to say that a writ of mandamus was the appropriate route to seek redress, but concluded that the Court could not issue one. Marshall argued that the Judiciary Act of 1789 was unconstitutional. The Supremacy Clause, which places the Constitution before laws, prevents Congress from changing the Constitution through normal legislation. By making this ruling, Marshall created the notion of judicial review, the authority to declare a law unlawful. 2. Miranda Vs. Arizona Court: United States Supreme Court Citation: 384 US 436 (1966) Year: 1966 Facts: This case combines four cases in which the defendant admitted guilt after being subjected to a range of interrogation tactics without being advised of his Fifth Amendment rights. Ernesto Miranda was arrested in his home on March 13, 1963, and taken to the police station where he was questioned about a kidnapping and rape. Miranda gave a written confession to the police after a two-hour of interrogation. Despite the defence attorney's objections and the police officers' admission that they did not advise Miranda of his right to an attorney present during the interrogation, the written confession was accepted into evidence at the trial. Miranda was found guilty by the jury. Supreme Court of Arizona said upon appeal that Miranda did not expressly request legal representation, so his constitutional rights were not violated. Issues: Does the Fifth Amendment's protection against self-incrimination apply to police interrogation of a suspect? Judgement: In an opinion penned by Chief Justice Earl Warren, five justices made up the majority. Due to the coercive nature of police custodial interrogation, the Court ruled that no confession could be used against a suspect in court under the Fifth Amendment's prohibition against self-incrimination and the Sixth Amendment's right to an attorney unless the suspect was made aware of his rights and knowingly and willingly waived them. 3. Brown Vs. Board of Education Court: United States Supreme Court Citation: 347 US 483 (1954) Year: 1954 Facts: This case involved the consolidation of cases involving the racial segregation of public schools in Kansas, South Carolina, Virginia, Delaware, and Washington, D.C. Due to legislation authorizing racial segregation in public education, African American pupils had been refused admission in each of the cases. The Equal Protection Clause of the Fourteenth Amendment, they said, was violated by this form of segregation. According to Plessy v. Ferguson, which determined that racially segregated public facilities were acceptable as long as they provided equal access to both blacks and whites, the plaintiffs were denied redress in the lower courts. Issues: Does the segregation of public schools solely on the grounds of race violate the Equal Protection Clause of the Fourteenth Amendment? Judgement: The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment's safeguards is inevitably violated by "separate but equal" facilities. According to the court, racial segregation in public schools instilled a sense of inferiority in African American children, which had a severe negative impact on their education and personal development. 4. Roe Vs. Wade Court: United States Supreme Court Citation: 410 US 113 (1973) Year: 1973 Facts: In 1970, Jane Roe sued Henry Wade, the district attorney of Dallas County, Texas, where she resided, to overturn a state law that made abortions prohibited unless performed on a woman's life-saving instruction. Roe claimed in her case that the state laws violated her right to personal privacy, which is guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and were unconstitutionally vague. Issues: Does a woman's right to have an abortion recognized by the Constitution? Judgement: The court ruled that while a woman's decision to end her pregnancy is covered by her right to privacy, this right is not absolute and may be limited by the state's legitimate interests in safeguarding the woman's health, upholding appropriate medical standards, and protecting human life. The court set forth the following: Before the end of the first trimester of pregnancy, the state may not interfere with or regulate an attending physician's decision, reached in consultation with his patient, that the patient's pregnancy should be terminated; from and after the end of the first trimester and until the point in time when the foetus becomes viable, the state may regulate the abortion procedure only to the extent that such regulation relates to the preterm birth. JURISDICTION- MALAYSIA 5. Indira Gandhi Vs. Pengarah Jabatan Agama Islam Perak Court: Federal Court of Malaysia Citation: [2018] MLJU 69 Year: 2018 Facts: The respondent, Patmanathan a/l Krishnan, was married to the appellant, Indira Gandhi a/p Mutho. They were married under the Law Reform (Marriage and Divorce) Act of 1976 ("civil marriage"), and they had three children. The respondent subsequently converted to Islam. A dispute arose after the respondent converted the children to Islam and got custody of the children from the Syariah Court without the appellant's consent. The Registrar of Muallaf delivered to the appellant three certificates of conversion to Islam and a document proving that the children were registered as Muslims. The Administration of the Religion of Islam (Perak) Enactment of 2004 (the Perak Enactment) mandates the two sentences of the Affirmation of Faith, but the children were not present before the Registrar and did not say them. The appellant submitted a judicial review application to the High Court, where it was granted an order to nullify the Certificates. The appellant's divorce petition for a civil marriage was approved, and she was also given custody of the three children. The Order was quashed by the Court of Appeal following an appeal. The appellant, aggrieved, filed an appeal. Issues: Whether the High Court has the authority to review the actions of the Registrar? Whether a child of a civil marriage who is less than 18 must follow the law before the registrar records his conversion. Whether the Certificates can be granted without the approval of the surviving mother and father of a child from civil marriage? Judgement: The Federal Court decided that the High Court has the authority to review the Registrar's judgement because such judicial authority is fundamental to the Federal Constitution's basic structure and is not disregarded by article 121(1A) of the Federal Constitution. The Federal Court further declared that because articles 96(1) and 106(b) of the Perak Enactment are not being met, the Registrar lacks authority to issue the Certificates. It was determined that the appellant and the husband must both agree before the Certificates can be issued based on a purposive interpretation of Article 12(4) read with the Eleventh Schedule of the Federal Constitution and the application of sections 5 and 11 of the Guardianship of Infants Act 1961. JURISDICTION- CANADA 6. Schachter Vs. Canada Court: Supreme Court of Canada Citation: [1992] 2 SCR 679 Year: 1991 Facts: Shalom Schachter applied for benefits to be able to care for his child once his wife returned to work. He first asked to be granted maternity benefits under section 30 of the Unemployment Insurance Act of 1971. Later, he modified his request to include "paternity benefits" under Section 32 of the Act, which was granted to adoptive parents and may be shared between them. Mr Schachter's request was denied and A Board of Referees rejected his appeal. He filed a lawsuit in federal court, claiming that the denial of benefits was a violation of his rights to equality protected by section 15 of the Charter. Issues: Does Section 52(1) of the Constitution Act need to be invoked if it is determined that Section 32 of the Unemployment Insurance Act generates unequal benefits? Does Section 24(1) of the Charter grant the court the authority to rule that natural parents are entitled to benefits under Section 32 on the same terms as adoptive parents? Judgement: The Federal Court found that Section 32 was discriminatory because it treated biological parents and adoptive parents differently. The S. 32 benefits were extended to natural parents by the court. The decision was upheld by the Federal Court of Appeals. However, the Supreme Court decided not to extend the benefits to biological parents. According to the majority of the court, the benefit was not sufficiently inclusive. However, the provision shouldn't be immediately struck down because doing so would deny many others access to it while providing Mr Schacter with no benefit at all. 7. R Vs. Big M Drug Mart Ltd. Court: Supreme Court of Canada Citation: [1985] 1 SCR 295 Year: 1985 Facts: Police officers from Calgary visited the Big M location on a Sunday in May 1982 that was open to the public. In addition to the sale of groceries, plastic cups, and a bicycle lock, they saw several other transactions. Then, Big M was charged with unlawfully selling goods on a Sunday in violation of Section 4 of the Lord's Day Act. The charge was dismissed in a 1983 trial by a Provincial Court judge who ruled that the Lord's Day Act was unconstitutional. The Alberta Court of Appeal rejected the Crown's appeal as well. The Crown then appealed to the Supreme Court of Canada. Issues: What is religion according to Section (2)(a)? Is this infringement of Section 2(a) protected by Section (1)? Judgement: The Supreme Court ruled that the legislation was unconstitutional and violated section 2 of the Canadian Charter of Rights and Freedoms because it lacked a true secular foundation and served only to create an essentially religious state requirement. As a result, the law was declared invalid. Section 52 of the Constitution Act of 1982, in contrast to Section 24 of the Charter, which is for those whose rights are violated, specifies that unconstitutional laws can be deemed invalid, which allowed the drug store to prevail. Since a company cannot practise any religion because it is not a natural person, there was no infringement on the corporation's right to freedom of religion. 8. R Vs. Oakes Court: Supreme Court of Canada Citation: [1986] 1 SCR 103 Year: 1986 Facts: David Oakes, the respondent, was accused of violating Section 4(2) of the Narcotic Control Act by unlawfully possessing a drug for trafficking (NCA, since replaced by the Controlled Drugs and Substances Act in 1996). Eight 1-gram vials of cannabis resin in the form of hashish oil were among the items the police discovered in Oakes' possession. The officers found $619.45 after taking him to the police station and conducting additional searches there. The accused denied drug trafficking and admitted to the police that he spent $150 on 10 vials of hash oil for personal use. He claimed that the cash they had discovered came from a worker's compensation cheque that he had cashed. The defendant chose not to testify throughout the trial. The judge decided that there was evidence of drug use. The accused then filed a motion asserting that the NCA's Section 8 provision, which required the accused (Oakes) to demonstrate that he did not have the drug for trafficking, violated his constitutional right to a presumption of innocence until proven guilty under Section 11(d) of the Canadian Charter of Rights and Freedoms. His argument was successful at trial and at the Court of Appeal, which held chat the reverse onus provision in Section 8 was unconstitutional. The Crown appealed to the Supreme Court of Canada. Issues: Does Section 8 of the Narcotic Control Act impose a presumption of guilt in contravention of Section 11(d) of the Charter? Judgement: The Supreme Court of Canada concluded that, even though drugs are a scourge, Section 8 of the Narcotic Control Act violates the right to a presumption of innocence guaranteed by Section 11(d) of the Canadian Charter of Rights and Freedoms. According to Section 8, a person is believed to have planned to traffic in drugs if they are discovered in their possession. This amounts to a restriction on rights and freedoms that, under section 1 of the Charter, cannot be justified in a society that is free and democratic. 9. Vriend Vs. Alberta Court: Supreme Court of Canada Citation: [1998] 1 SCR 493 Year: 1998 Facts: Vriend was dismissed from his job as a lab coordinator at King's College, a private, Christian university, for no other reason than his sexual orientation. Mr Vriend attempted to appeal the dismissal but was unsuccessful. He also attempted to file a complaint with the Alberta Human Rights Commission but was unable to do so because the Individuals' Rights Protection Act (the IRPA) does not list sexual orientation as a protected ground. Vriend and others filed a motion to the Alberta Court of Queen's Bench asking the court to declare that sexual orientation is read into the IRPA as a protected ground. The trial judge agreed and granted the declaration; however, the Alberta Court of Appeal reversed the judgement. Mr Vriend and the others filed an appeal with the Supreme Court of Canada. Issues: Does the Charter include government omissions, such as decisions not to include particular provisions in legislation? Judgement: The Supreme Court of Canada ruled that the exclusion of sexual orientation as grounds for discrimination in the act created a disparity that prevented people from receiving equal benefits and legal protection based on their sexual orientation. The court ruled that this was a violation of Section 15 of the charter that could not be justified under Section 1 and ordered that sexual orientation be incorporated into provincial legislation. JURISDICTION: SOUTH AFRICA 10. S Vs. Makwanyane Court: Constitutional Court of South Africa Citation: 1995 (6) BCLR 665 Year: 1995 Facts: The Witwatersrand Local Division of the Supreme Court found the two accused guilty on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. On all counts of murder, they were given the death penalty, and on the others, they got long prison terms. They filed an appeal with the Appellate Division of the Supreme Court challenging their convictions and sentences. The Appellate Division dismissed the appeals against the convictions and concluded that, given the circumstances of the murders, the defendant should be given the harshest sentence permitted by law. Issues: Is the death sentence as it is stated in the Criminal Procedure Act Section 277(1)(a) constitutionally permissible? Or is it permitted under the Constitution? What are the implications of section 241(8) of the interim constitution? Judgement: The court decided that the death penalty violates the fundamental rights to which every human being is entitled and that it does so within the parameters of the constitutional provisions. Section 277(1)(a) of the Criminal Procedure Act was declared unconstitutional. LegalBots.in wishes you all the best!

Sumasri

Aug 22, 2022

A Guide To Parliamentary Debate, MUN, and Judgement Writing In Law School

PART I: Parliamentary Debate What is Parliamentary Debate? Parliamentary debate is a formal competition featuring critical analysis and strong rhetorical skills by participants. In a parliamentary debate competition, participants represent the advocates for and against a motion that is provided for debate (this is also known as a resolution or a topic). How Does It Work? A motion is presented by the organisers as the subject of debate. It is important to note that for each round of debate, a new motion is used. There are two teams involved, one is designated as the Proposition (also known as Government) which speaks in favour of the given motion and the other is called the Opposition. The two teams are given approximately twenty minutes (which may differ from competition to competition) to prepare the debate for each round. During the preparation time, students are permitted to consult other students, dictionaries, reference materials, prepared notes, and perhaps even the internet. However, once such duration expires, no reference materials are allowed to bring for the debater’s use during the round. There are four debaters in a debate. The person who opens for a side also closes for that side. This means that on each team, one debater will speak twice while the other will speak once. There are two types of formal speeches in each round of debate- constructive speeches and rebuttal speeches. Crucial Tips For Parliamentary Debate Strategy Use Formal Phrases Wherever Possible Using professional phrases in speeches creates a greater impact. Phrases such as… The first point I’d like to make/to mention, is… Let me say that I/we believe that… It seems to me/us/my team that… Let’s look at… I would like to emphasize that ….. As you know …… may be used during the course of the speech. Understanding The Art Of Rhetoric Engagement The first part of rhetoric is invention. This means knowing your audience's interests and desires and playing with them. A good argument arrangement goes only so far. Try to organize your argument by making your claim, adding evidence, and showing the impact to support the claim. Improve your style by remembering your speech. If you know your speech by heart, you can start to work on your speaking style. A memorized speech gives you confidence, and with that confidence, you can focus your efforts on delivery. Amplify your performance by enhancing your delivery. Gestures, body language, tone, and eye contact are all significant parts of delivery in debate. It is not just what you are saying, but how you say it that will win over the judges. Take Your Speaking Skills To The Next Level It is important to get rid of filler words. As you practice, take note of when you use filler words such as “like” or “um.” Make a habit of replacing these words with silence. This will make you look thoughtful, rather than unprepared. Find synonyms for overused words. When you use the same words multiple times in your speech, you bore your audience, appear unprepared, and are less well-spoken. Avoid this by writing your speech with different words for commonly used ones, and having a list of synonyms for words you believe you will commonly use. Slow your pace: Speaking slowly and calmly helps to deliver your points effectively. Be calm when making rebuttals: Making rebuttals can get exciting and heated, but overdoing the emotion is never a good idea. Remain calm but firm and confident during the rebuttals. How To Make An Impact Make all your movements during your delivery neutral, open, defined, and strong. Don’t be afraid to use the full stage to your advantage, but make controlled movements. Maintaining eye contact is of paramount importance. Try to connect with as many people as possible by moving your eye contact around the room. Practice doing so line by line so you increase the number of people you make eye contact with. Do not be a boring or monotonous speaker, try and change up your tone! Try to act as if you are talking to your audience, not reciting a speech from memory. Dramatic pauses are extremely powerful, but when done at the wrong time can be detrimental to the argument. Master the dramatic pause and put it at the right time for your case. Use a passionate tone of voice when closing — it’s something that will make your argument memorable. PART II: Model United Nations Competitions Model United Nations is an academic simulation of the United Nations where students play the role of delegates from different countries and attempt to solve real-world issues with the policies and perspectives of their assigned country. For example, a student may be assigned the United Kingdom and will have to solve global topics such as nuclear non-proliferation or climate change from the policies and perspectives of the United Kingdom. The MUN participants, called delegates, must represent the political position that such country takes in the organisms assigned, such as the UN Security Council, the Human Rights Committee, and others. ? Usually, two topics are discussed in each committee. The delegates must be previously familiarized with them in order to be properly prepared for the conference and to be able to faithfully defend their country’s position. The normal functioning of each committee is in the hands of the Chairs. They are in charge of choosing the topics that will be discussed and will also lead the debate. ? How Is MUN Important For Law Students? Mastering The Skill Of Diplomacy Diplomacy, or the art of negotiation, is not only restricted to conversations between two countries, but pertains to any purposeful exchange between two groups, and thus, is a very useful skill to possess. By practising diplomacy at the MUNs, a student is likely to become more knowledgeable and experienced in how to conduct negotiations between two groups in a tactful and result-oriented manner. Apart from learning the skill of diplomacy, students aspiring to become professional diplomats or advocates can practice and groom themselves for the field by participating in MUNs, which are real-life examples of the life and work of professional diplomats. Upskilling Your Writing Abilities Most MUNs have an in-house department called the International Press which hosts student reporters and photographers. Student reporters are responsible for covering the proceedings of the different committees in depth in order to formulate daily newsletters. The articles in such a newsletter have to be formally drafted in a manner that clearly demonstrates the stance of the countries on the issue at hand as well as the analysis of the reporter concerned. The newsletter is distributed to all participants on both days and needless to say, a lot of effort goes into it. Building Analytical Skills Astute analytical ability is a trait that helps you at every stage of your legal profession, by helping you solve problems through analysis. The MUN is an ideal place to hone analytical skills, as in a simulated environment you will be challenged and required to solve the task after examining the concerns of the other countries, past precedents, and potential solutions to come up with an acceptable resolution. Getting Better At Public Speaking Public speaking is one of the key students that one is supposed to develop as a law student. Developing efficient public speaking skills takes practice, and the MUNs provide an ideal platform where you can explore and improve your capabilities. Public speaking is an integral part of the MUNs, as you express your views as a delegate and debate in front of an audience. Since you will make multiple speeches during the overall MUN event, you will have several key opportunities to improve your public speaking prowess. It also improves your abilities to write an impactful time-bound speech that impresses the committee Chairs. Furthering Your Leadership Skills Considering all the benefits listed above, it is not a stretch to claim that your personality will flourish at MUNs. The independence, challenges, and teamwork will surely serve to enhance your leadership skills, as you take charge as a representative of a real-world country. You will be encouraged to take decisions and work out solutions as a leader for the country. While the whole experience is undoubtedly enjoyable, it is also empowering and gives you the platform to take important judgement calls and bring your leadership skills into play. PART III: Judgement Writing A judgment is a statement given by the Judge, on the grounds of a decree or order. It is the end product of the proceedings in the Court. The writing of a judgment is one of the most important and time-consuming tasks performed by a Judge. Structure Of A Judgement Before writing a judgment a Judge must remember that he is performing a public act of communicating his opinion on the issues brought before him and after the trial by observing fair procedures. He is required to tell the parties of the decision, on the facts brought before him, with the application of sound principles of law, his decision, and what the parties are supposed to do as a necessary consequence to the judgment or to appeal against it. It is basically communication to the parties coming before him for a decision. A good judgment should have: Index Introduction Facts Clear articulation of the issues that arise for consideration/points of determination. Evidence led to proving each factual issue and appreciation of evidence on each issue. Applicable law and the application of law to the facts of the case. Reasoning and findings. Conclusion Adopting The Right Approach The method in which the writer arrives at a conclusion in judgement writing is often the most important part of the exercise. The process by which the conclusion is arrived at, and the statement in the judgement of that process, demonstrates the ability and integrity of the judge. Such a process may be a syllogistic process, inferential process, or intuitive process. Syllogism, or the syllogistic process, refers to a deductive scheme of a formal argument consisting of a major and minor premise along with a conclusion. In other words, in this process, the judge takes on a deductive approach in which he accepts an argument on a major premise that outweighs the minor premise in order to draw his own conclusion. The inferential process involves the judge relying upon the evidence in order to reach a reasonable conclusion. When the judge arrives at a conclusion more by intuition than through other reasons, the psychological process adopted by the judge is called the intuitive process. Common Mistakes In A Judgement Needless to say, judgement writing is a considerably complex exercise that requires superlative intellectual abilities. Even someone who is qualified may end up writing something that falls short of being a perfect judgement in terms of articulation. Some of the most common mistakes that can be found in such judgements include: things that do not need to be recorded deciding things that do not need to be decided obscuring the analysis with poor organisation and irrelevant details neglecting the “aesthetic” component of persuasion making the analysis more complex than it really is. Everything that is unrelated to the issues should be cut out — “every word must earn its right to be on the page”. To remedy these mistakes, one may keep the following pointers in mind: break up any monster sentences get rid of legalism or excessive jargon replace passive voice with active when active voice works better replace the verb “to be” when a better verb is available cut out every word that will not be missed cut out every detail that has no bearing on the issues make sure every word earns its right to be on the page give yourself permission to write like a writer. LegalBots.in wishes you all the best!

Sumasri

May 26, 2022

How to file a RTI?

The Right to Information Act, simply known as RTI, is a revolutionary act that aims to promote transparency in government institutions in India. The Act came into existence in 2005, after sustained efforts of anti-corruption activists. RTI Act was made by the legislation of Parliament of India on 15 June 2005. Until the RTI Act empowered the common man to demand information from the government, only the members of Parliament had the privilege of seeking this information. The Act came into effect on 12 October 2005 and has been implemented ever since to provide information to crores of Indian citizens. All the constitutional authorities come under this Act, making it one of the most powerful laws in the country. It is termed revolutionary because it opens government organisations up for scrutiny. Equipped with knowledge about RTI, a common man can demand any government agency to furnish information. Steps to file an RTI (offline mode) STEP 1 - Identify the department in which you want to file an RTI plea. The department shall come under a local authority, State, or Central government. STEP 2 - Write/type an application in the official language of the State or in English/Hindi, and address it to the Public Information Officer (PIO) of the concerned department. For example, if the RTI is related to tax then address it to the PIO of the Income Tax department, or if it is related to defense then address it to the PIO of the Ministry of Defense. STEP 3 - Ask clear and specific questions in the RTI application, related to the concerned department. While addressing it to the concerned department, mention “seeking information under the RTI Act -2005” in the subject line. Mention your address and contact details correctly. STEP 4 - To file the application, pay the fees of Rs 10 in cash or through a bank draft/money order. One can also seek a particular document or its excerpt which will be charged at a nominal fee of Rs 2 per page. STEP 5 - The RTI application can be sent by mail or handed over personally. The applicant also needs to keep a photocopy of the RTI application and an acknowledgment from the office upon receiving the application. Note: If a person is illiterate then he/she can approach the PIO, tell their requirements to file an RTI, and the PIO is obligated to write an application on their behalf as well as read it to them before processing it, under the RTI Act 2005. If the applicant is below the poverty line then the applicant need not pay any fee to file an RTI applicant, however, proof shall be provided by the applicant of his financial status as per RTI Rules 2012. The application can also be sent to the assistant PIO via the post office. The postal department has appointed many assistant PIOs whose job is to receive RTI applications and forward them to PIO or appellate authority concerned. Steps to file an RTI (online mode) STEP 1 - Visit the official website of the RTI portal. STEP 2 - In order to submit an application, click on the “Submit Request” option. STEP 3 - On clicking the submit request, “Guidelines for use of RTI online portal” will display on the screen. Read the guidelines carefully and click on the submit checkbox response to proceed further. STEP 4 - Then the applicant will be directed to the Online RTI Request Form on the screen. Select the department for which the applicant wants to file the RTI application. All the mandatory sections need to be filled and the applicant will get SMS alerts on the mobile number provided. If the applicant is below the poverty line then a BPL card certificate has to be filed in the form to get an exemption from paying the application fee (Rs 10/- per application). STEP 5 - Upon submission of the application form, a unique registration number will be issued for any future reference regarding that particular RTI application. STEP 6 - After filling all the details in the application form, the applicant shall proceed toward the payment option. Payment can be done through net banking or credit/debit card. STEP 7 - Finally, after the payment is done the applicant will receive an email and SMS alert on the provided email address and phone number respectively. How many days does it take to get RTI response? The RTI information should be provided within 30 days from the date of submission of the application to the PIO. However, if the documents are displaced or difficult to find then the PIO shall send the applicant a written intimation about the possible delay and reason. If the PIO fails to do so and the information is not received within 30 days by the applicant then a penalty can be levied on the PIO if the matter is taken up by the appellate authorities. Which Government Departments are exempted from the RTI Act, 2005? Twenty-odd organisations are exempted from RTI, which are related to the country’s defence and intelligence such as RAW, BSF, CRPF, CISF National Security Guard, Intelligence Bureau, etc. Further, there are some specific circumstances when an RTI cannot be filed, such as: Would affect national security, sovereignty, and economic or scientific interest Have been disallowed by the court Related to trade secrets of a competitive third party which might harm country’s international relations Information under fiduciary relationship Foreign government information Information related to any process of investigation Information that might affect the life/physical safety of a person

Priyanka Mangaraj

May 19, 2022

How to file a PIL?

Public Interest Litigation (PIL) refers to a legal action taken by any person for the benefit of the general public or any act to secure the public interest. It demonstrates the availability of justice to socially-disadvantaged parties. For socially conscious citizens who would like to fix the system through a court of law, the Public Interest Litigation (PIL) is a powerful tool. Public Interest Litigation cases won or lost in the High Court or the Supreme Court of India often make news these days. Whether a PIL case wins or loses, it certainly makes an impact on the lives of people who are connected to the issue in one way or the other. The FAQs below will help you to clearly understand the use and procedure of filing PILs. Who can file a Public Interest Litigation (PIL)? Public Interest Litigation (PIL) can be filed by any Indian citizen or organization. However, the only condition is that it should be filed in the public interest rather than entertaining any kind of private interest. Sometimes, the court also takes cognizance of a matter if it is one of very public importance, and can appoint a lawyer to handle the case. Where can Public Interest Litigation be filed? Public Interest Litigation (PIL) can be filed either in Supreme Court or High Court depending on the situation. Both the Courts have the power to entertain the Public Interest Litigation. How to file a PIL in India? An individual (petitioner) has to do thorough research on the related matter before filing a Public Interest Litigation in the Courts. Once an individual has decided to file a Public Interest Litigation (PIL), he should collect all appropriate information and the required documents to strengthen and fight his case. The person filing the Public Interest Litigation can either debate himself or appoint a lawyer. Generally, in any case, it is advisable to consult an advocate before filing a PIL. PIL In High Court - If the person is planning to file a Public Interest Litigation in the High Court then he is required to submit two copies of the petition to the Court. Also, a copy of the petition has to be sent to each defendant in advance, and proof of this has to be added to the PIL. PIL In Supreme Court - If the person is intending to file a PIL in the Supreme Court, then he is required to submit five copies of the petition to the Court. The copy of the Public Interest Litigation is sent to the respondent only when a notice is issued by the Court for it. Fees required for filing a PIL Filing a PIL is cheaper than in any other Court case. An individual has to pay a fee of Rs 50 for each respondent and it has to be affixed with the petition. But, the entire cost of the complete proceedings depends on the lawyer appointed by the petitioner. Essentials for filing a Public Interest Litigation (PIL) Find a public interest lawyer or organization to file the case. Collect required documents such as title deeds, proof of residence, identity proof, notice, resettlement policy and photographs of the eviction. List out the names and addresses of all aggrieved parties approaching the Court. List out the names and addresses of government agencies from which relief is sought. List out the facts giving rise to violations of fundamental rights. Mention the dates indicating the duration of stay at the site, when the eviction took place, when and if an eviction notice was provided, and other important details related to the eviction. State the prayers or the relief being sought from the Court. Few areas in which a Public Interest Litigation (PIL) can be filed Infringement of religious rights, fundamental rights and human rights Force municipal authorities to conduct a public duty Conduct of government policy Few matters which will be not allowed as a Public Interest Litigation (PIL) Matters related to landlord-tenant Matters related to services Matters related to pension and gratuity Matters related to admission to educational institutions Request for early hearing of cases in Courts How long does it take for the closure of the Public Interest Litigation (PIL)? It depends on the case. If the case is related to the lives of people or violations of human rights then the Court would take up the case immediately, conduct the hearing and settles the case in a short period. However, due to the collection of more public interest petitions in Courts, it takes years to hear and settle cases. How to file a PIL online? Go to the main website of the Supreme Court of India i.e. https://main.sci.gov.in/ Click on the 'E-FILING' tab. Click on ‘New Registration’ and then choose User Type 'Petitioner in Person' or 'AOR Number'. If you have chosen 'AOR Number' then you have to provide the AOR Number. If you have chosen 'Petitioner in Person' then you have to fill out the online forms and provide the information like: Name, Address, State, District, Pin Code, Mobile No, Email, Aadhaar Card No. After filling in the required information, click on the ‘Sign Up’ button at the end of the page. After completing registration, head back to the ‘E-FILING’ page. Again, click on the ‘Login’ option. Then, click on 'New Efiling' and fill in the details and save it. Make the payment. After all the required information has been filled in and the payment is completed, an application number will be given. Additional Notes: Father of PIL in India Justice Bhagwati (Chief Justice of India from July 12, 1985, to December 20, 1986) is generally referred to as the father of public interest litigation in India due to his contribution to Public Interest Litigation jurisprudence. Types of PILs in India There are two types of Public Interest Litigation (PIL): Representative Social Action Citizen Social Action

Gaurav

Mar 15, 2022

Secularism in India: The Hijab Row

Introduction India is a diverse country consisting of people belonging to various religions, castes, creeds, and socio-cultural backgrounds. The Indian Constitution did not contain the word ‘secularism’ when it was framed, until the 42nd amendment, when the term ‘secular’ was added to the Preamble of the Indian Constitution, along with the term ‘socialist’. The basic aim was to promote fraternity while assuring unity and integrity of the nation and protection of individual rights. A secular state is a state which does not prioritise any particular religion but accepts and respects all religions and communities of people.[1] Secularism can be Positive Secularism or Negative Secularism. The concept of negative secularism connotes a complete separation of religion (the church) and State (the politics). This generally prevails in Western countries. However, the Indian Constitution is embodied with positive secularism, which means giving equal respect to all religions and protecting all religions equally. In the Ayodhya verdict[2], the Supreme Court observed that the Vedic percept of “Sarva Dharma Sama Bhava” indicates positive meaning to Indian secularism, that is developing an understanding and respect towards all religion in the country. Any state government pursuing anti-secular activities shall be punished under Article 356 of the Indian Constitution[3]. However, over the past few days, India is witnessing some chaos concerning the question of whether a state government can decide if a particular religious practice is essential for the people of that community. With the ongoing case of Smt Resham & Anr v. State of Karnataka & Ors (Hijab Row case), this article will present a clearer picture regarding this burning issue and the events that have taken place so far. Background of the case On 3rd February 2022 female Muslim students wearing hijab were not allowed to attend classes by the principal and college staff of Milagres College in the Udupi district of Karnataka on a plea that there was a Government order prohibiting wearing headscarves to educational institutions. Following this, three petitions were filed in the Karnataka High Court. On 8th February 2022, the first hearing of the case was held by a single bench of Justice Krishna S. Dixit of Karnataka High Court. Grounds argued by the petitioners were as follows: Since the establishment of Milagres College, Udupi, Muslim girls have been wearing hijabs without any hindrance. Hence the sudden restriction is unnecessary and unanticipated. According to the University Grants Commission (UGC) Act, there is no prescribed rule of a particular uniform to be worn in educational institutions. There is a violation of the fundamental right to education against the students without any justification. Article 25(1) of the Indian Constitution provides freedom to practise religion. Petitioners also claimed involvement of political interests in the internal college management. While the hearing was underway in the Karnataka High Court, the ‘Saffron Hijab’ protest swelled in different parts of the State against the students wearing hijabs. As a result of this, the Chief Minister of Karnataka, Basavaraj Bommai, ordered the closure of all high schools and colleges. Justice Dixit, after the first hearing, urged the students and the public to maintain peace and tranquillity in the State and referred this matter to a larger bench. On 10th February 2022, a three-judge bench headed by the Chief Justice of Karnataka High Court, Justice Ritu Raj Awasthi, along with two other senior judges passed an interim order restricting all the students of the State from wearing any religious garments to the classes, till the matter is resolved. They also directed the State Government to re-open educational institutions without hindering the academic year of the students.[4] Arguments of the Petitioners As the three-judge bench of Karnataka High Court, Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi continued to hear the hijab row petitions, where senior advocate, Yusuf Muchhala, argued that Article 25(1) of the Indian Constitution[5] guarantees ‘Freedom of Religion’ to all persons of the country. However, it has been observed by the counsel of the petitioner that ‘freedom of conscience’ is distinct from the ‘right to profess, practice and propagate religion’. Some people might not believe in any religion, whereas some people might believe in all. Freedom of conscience protects these beliefs of individuals as a form of their freedom to express their choices and beliefs. Hence it must not be forgotten that the choice of clothing of an individual is a part of their freedom of expression. In order to argue with the defendant’s submission that wearing hijab is not an integral part of the Muslim religion, Muchhala submitted that “When a right is claimed under Article 25(1) and Article 19(1)(a), what matters is the entertainments of a conscientious belief by an individual; it is not necessary to determine whether it is an integral part of the religion”. Justice Jasti Chelameswar’s opinion in the landmark Puttaswamy judgement[6] of the Supreme Court was also cited by the petitioner’s counsel where he observed freedom of conscience to fall within the fundamental right to privacy. Also, in 2016 Kerela High Court had recognised and allowed Muslim girls to wear hijab when sitting for medical entrance exams.[7] The Karnataka Government order dated 5th February 2022, based on which students are not being allowed to wear hijabs to classes in educational institutions, is argued by the petitioners to be completely arbitrary and being violative of Article 14 of the Constitution[8]. The petitioners further argue that this order also asks College Development Committees to prohibit the wearing of hijabs or any other religious attire to educational institutions, without any consultation and without providing an opportunity to the aggrieved students and their families, to argue against these rules. Continuing the petitioner’s arguments, senior advocate Ravivarma Kumar pointed out that Article 25 of the Indian Constitution guarantees freedom of free practice and propagation of religion to all the persons of the country, however, it is subject to restriction. The restriction has been provided under the same article, that is Public Order. Maintaining public order is a power of the State Executive, hence a mere College Development Committee is not competent to decide for this matter. He explained that the Karnataka Education Act 1983[9] and its 1995 Rules[10] never gave any authority to College Development Committees to frame rules or have jurisdiction over matters which affect the fundamental rights of the people of the country. Previously on the hijab row, the Karnataka High Court had heard two broad strands of argument by senior advocate Devadatt Kamat: The Karnataka Government’s order dated 5th February 2022 unlawfully gives the power to College Development Committees to ban hijabs, with the presence of an existing fact that there is no state-wide policy on uniforms of educational institutions. Muslim girls are being forced to give up what they view as an essential part of their religious practice even though there is no threat to public order. Senior advocate Kamat pointed out an observation made by the Supreme Court in the Ratilal Panachand Gandhi case[11] that “No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner”. Along with Kamat, senior advocate Sanjay Hedge noted the protection of freedom of conscience by a landmark decision given by the Supreme Court in Bijoe Emmanuel case[12], where the apex court overturned the lower court’s decision to expel students from Jehovah’s Witnesses faith who would stand during the national anthem but would not sing it due to their own religious beliefs. Arguments of the Defendants On the other side of the case, Advocate General Prabhuling Navadagi, representing the Karnataka Government, countered the petitioners’ arguments stating that under Article 25(1) of the Indian Constitution, the State has the power to restrict matters of religious nature. He explained that during the Covid crisis, the State Government had ordered the closure of religious places such as temples, mosques, churches, etc as allowing them to remain open would have created disruption in the State. Similarly, it can not be said that wearing hijabs is an absolute Muslim religious practice, hence the State Government has the right to ban wearing hijabs if it causes the public disorder. Navadagi argued that the practice of wearing a hijab is not an essential religious practice of Islam and hence, does not violate Article 19(1)(a) of the Indian Constitution, and can be restricted under Article 19(2)[13]. It was also argued that Rule 11 of Karnataka Educational Institutions Rules, 1995[14] places a reasonable restriction inside the institutions and it is subjected to institutional discipline. Another vital question is whether a State Government has the power to decide whether a particular act is an essential practice of religion. Advocate General (AG) Prabhuling Navadagi argued that the entire claim by the petitioners to make hijab compulsory is beyond the ethos of the Indian Constitution. It was pointed by Navadagi that if hijab gets religious sanction then Muslim women will be obliged to wear it. It is the woman’s individual freedom to choose what to wear and what not. Hence if wearing hijab gets compulsory through religious sanction, then the liberty to choose one’s own clothing will be deprived for those women. He further argued that as far as private unaided minority educational institutions are concerned, the defendants are not interfering with the school/college uniform. Meanwhile, senior advocate R. Vekataramani appearing on behalf of teachers who were made respondents in a writ petition argued that the State should not interfere to decide what constitutes as ‘essential’ in a particular religion. State can only take a stand when the matter collides with public order, health and morality. The AG also stressed that a practice may be religious but not necessarily essential. He referred to the Ismail Faruqui judgement[15], stating that the Mosque is not an essential part to practice Islam, as Namaz can be offered anywhere, even in the open. This aspect of this case was connected with the present case, and argued by the AG that there was no restriction on wearing hijab on campus, the only restriction is inside the classroom during class hours. Further, citing the Triple Talaq case[16] and Sabrimala case[17], he argued that a religious practice claimed to be ‘essential’ must have been mandatory and not optional. Hence, as wearing hijab is not compulsory for all Muslim women, it is an optional practice depending upon an individual’s choice, therefore it cannot be said to be ‘essential’ to a religion. The Karnataka High Court, after hearing the arguments from both sides, has agreed to hear the pending petitions, meanwhile, has directed the State to check if its interim order dated 10th February 2022 (interim order restricting all the students of the State from wearing any religious garments to the classes) is not being violated. The Karnataka High Court on 23 February, 2022 clarified that this interim order passed by it will apply to both Degree Colleges and Pre-University Colleges, where there is a prescribed uniform for the students. Also, this order applies to only students and not teachers. Judgment (Smt. Resham v. State of Karnataka) On 15th March 2022, the Karnataka High Court ruled that wearing the hijab is not an essential practice in Islam. The bench led by Chief Justice Ritu Raj Awasthi said, ‘We are of the considered opinion that wearing hijab by Muslim women does not form a part of essential religious practice in Islamic faith’. The High Court also held that the Karnataka Government Order dated 5th February 2022 is not unconstitutional. The three-judge bench of Cheif Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice JM Khazi held the judgment according to the following major reasons: Hijab is not a part of the essential religious practices of Islam protected under Article 25 of the Indian Constitution[18]. The requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a) of the Indian Constitution[19]. The restriction of wearing hijab to educational institutions is also no violation of privacy under Article 21 of the Indian Constitution[20]. The Government has the power to pass the Government Order; no case is made out for its invalidation. The hearing before the Bench had lasted 11 days, before the verdict was reserved on 25th February 2022. Chief Minister Basavaraj Bommai welcomed the judgment and appealed to all the communities to accept it and respect it in the interest of the student community. [1] https://www.arvindguptatoys.com/arvindgupta/jahagir-secularism.pdf [2] https://www.sci.gov.in/pdf/JUD_2.pdf [3] https://indiankanoon.org/doc/8019/ [4]https://karnatakajudiciary.kar.nic.in/judgements/WP_2347_2022.pdf [5] https://indiankanoon.org/doc/631708/ [6] https://indiankanoon.org/doc/91938676/ [7]https://www.deccanherald.com/national/south/keralas-precedents-on-hijab-row-gets-focus-1079054.html [8] https://indiankanoon.org/doc/367586/ [9]https://righttoeducation.in/sites/default/files/THE%20KARNATAKA%20EDUCATION%20ACT,%201983.pdf [10]https://dpal.karnataka.gov.in/storage/pdf-files/Karnataka%20Rules/01%20of%201995%20Rules%20(E)(1).pdf [11] https://indiankanoon.org/doc/1307370/ [12] https://indiankanoon.org/doc/1508089/ [13] https://indiankanoon.org/doc/493243/ [14]Supra note 10 [15] https://indiankanoon.org/doc/37494799/ [16] https://indiankanoon.org/doc/115701246/ [17] https://indiankanoon.org/doc/163639357/ [18] Supra note 5 [19] https://indiankanoon.org/doc/1378441/ [20] https://indiankanoon.org/doc/1199182/

Priyanka Mangaraj

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